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REVISION OF THE ARTICLES OF WAR 


HEARING 


BEFORE THE 

J2ML 


u . S- 

COMMITTEE ON MILITARY AFFAIRS 




HOUSE OF REPRESENTATIVES 
SIXTY-SECOND CONGRESS 
Second Session 


on 

H. R. 23628 

BEING A PROJECT FOR THE REVISION OF 
THE ARTICLES OF WAR 


s-NOV 2 9 
Copy_1962 


JZ - £5X4 4 

CL 







WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1912 







COMMITTEE ON MILITARY AFFAIRS. 


House of Representatives, Sixty-second Congress. 
JAMES HAY, of Virginia, Chairman. 


JAMES L. SLAYDEN, of Texas. 

S. H. DENT, Jr., of Alabama. 

JOHN T. WATKINS, of Louisiana. 
MICHAEL F. CONRY, of New York. 
DUDLEY M. HUGHES, of Georgia. 
WILLIAM J. FIELDS, of Kentucky. 
DAVID J. LEWIS, of Maryland. 
EDWIN F. SWEET, of Michigan. 
THOMAS G. PATTEN, of New York. 
I. S. PEPPER, of Iowa. 

LYNDEN EVANS, of Illinois. 


JOHN M. HAMILTON, of West Virginia 
K. D. McKELLAR, of Tennessee. 
GEORGE W. PRINCE, of Illinois. 
JULIUS KAHN, of California. 

JAMES F. BURKE, of Pennsylvania. 
THOMAS W. BRADLEY, of New York. 
DANIEL R. ANTHONY, Jr., of Kansas. 
JOHN Q. TILSON, of Connecticut. 
BUTLER AMES, of Massachusetts. 
JAMES H. WICKER SHAM, of Alaska. 


Edward W. Carpenter, Clerk. 
James R. Baker, Assistant Clerk. 


2 


LETTERS OF SECRETARY OF WAR. 


War Department, 

W ashing ton, April 19, 1912. 

Sir: The Articles of War which now govern the conduct of the 
Army in time of peace and of war have not undergone comprehensive 
revision for more than a hundred years. The service conditions which 
these Articles of War are intended to regulate have greatly changed, 
and new and unforeseen conditions have arisen. As a result, experi¬ 
ence has increasingly disclosed the inadaptability of the existing mili¬ 
tary code to present-day service conditions. 

The necessity for a comprehensive revision of the code has long 
been apparent. Two such attempts at revision were commenced by 
this department, the first in 1888 and the other in 1903. The need for 
it has been so insistent that my predecessor, Secretary Dickinson, 
directed the present Judge Advocate General to undertake the labor 
of revision. This labor has been painstakingly prosecuted, and the 
results are herewith transmitted for your consideration as the basis of 
remedial legislation. 

The accompanying letter from the Judge Advocate General to me, 
submitting his proposed revision, sets forth very clearly and concisely 
the theory of his undertaking and the details of the suggested 
changes. I deem it necessary, therefore, to invite your attention only 
to the following broad features of the project: 

1. The revision was undertaken in the conservative spirit that 
legislative reforms should be evolutionary. In other words, that 
which successfully has withstood the test of experience should be re¬ 
tained, and changes and innovations should be limited to the wisdom 
of experience. As a matter of draftsmanship, it has been sought to 
build on established lines and to conform in general to settled ad¬ 
ministrative and judicial construction. 

2. The existing articles are notoriously unsystematic and unscien¬ 
tific. Inevitably this condition hampers their easy and effective 
enforcement. A careful classification has been made; disassociated 
legislation in the new Articles of War has been incorporated therein, 
resulting in an analytical, precise, comprehensive, and easily enforce¬ 
able code. 

3. Experience has disclosed a very serious evil in the administra¬ 
tion of military justice, owing to limitations of general courts- 
martial. But the service needs go beyond these liberalizing changes 
as to the constituency of general courts. As the Judge Advocate 
General convincingly" show T s, there is need of an intermediate dis¬ 
ciplinary court to deal with that large proportion of cases midway 
between* the grave offenses calling for dismissal, dishonorable dis¬ 
charge, or detention, to be disposed of by general court-martial, and 



4 


REVISION OF THE ARTICLES OF WAR. 


the minor offenses calling for very light punishment, which are now 
dealt with by the summary courts. Under existing conditions there 
is necessarily delay and laxity in the administration ot military 
justice, with the resulting impairment of efficiency. I regard the 
use of this intermediate disciplinary court of great importance and 
one that is bound to be productive of much good. 

I have carefully studied in detail the proposed revision, and the 
reasons underlying the various proposals. The whole project has my 
hearty approval. I trust that it will meet with your approval, so 
that you will urge its prompt enactment into law at the present ses¬ 
sion of Congress. 

A similar request has this day been made of the chairman of the 
Military Committee of the Senate. 

Very sincerely, Henry L. Stimson, 

Secretary of War. 

Hon. James Hay, 

Chairman Military C ommittee, House of Representatives. 


\ 

LETTER OF JUDGE ADVOCATE GENERAL. 

War Department, 

Office of the Judge Advocate General, 

W ashing ton, April 12. 1912. 

The Secretary of War. 

Sir: I have the honor to submit herewith a project of revision of 
section 1342 of the Revised Statutes—the Articles of War—and to 
request that, in the form in which approved by you, it be transmitted 
to the Congress with a request for its enactment. The necessity for 
revision will be best understood by a preliminary reference to the 
history of the present articles. 

I 1 ode of 1775. —Passing over the earlier enactments of the American 
Colonies of articles of war for the government of their respective con¬ 
tingents, of which we have examples in the articles adopted by the 
Provisional Congress of Massachusetts Bay, April 5, 1775 (American 
Archives, 4th series, vol. 1. p. 1350), followed by similar articles 
adopted in May and June of the same year, successively, by the Pro¬ 
vincial Assemblies of Connecticut and Rhode Island and the Congress 
of New Hampshire (idem, vol. 2, pp. 565, 1153, 1180), we come to the 
first American articles—Code of 1775—enacted by the Second Con¬ 
tinental Congress, June 30, 1775. Of this code, comprising 69 
articles, the original was the existing British Code of 1774, from 
which said articles were largely copied. The code was amended by 
the Continental Congress on November 7, 1775, by adding thereto 16 
provisions, intended to complete the original draft in certain par¬ 
ticulars in which it was imperfect. 

Code of 1776. —The Articles of 1775 were superseded the following 
year by what has since been known as the Code of 1776. enacted 
September 20 of that year. It was an enlargement, with modifica¬ 
tions, of the amended Code of 1775. There followed the amendments 
of 1786, regulating the composition of courts-martial, and generally 



REVISION OF THE ARTICLES OF WAR. 


5 


the administration of military justice. As thus amended the code 
survived the adoption of the Constitution of the United States, being 
continued in force by successive statutes, “so far as the same are 
applicable to the Constitution of the United States.” The necessity, 
however, for revision, in order to adapt the articles to the changed 
form of government, became obvious. This revision was accom¬ 
plished bv the act of April 10. 1806 (2 Stat., 259), which superseded 
all other enactments on the same subject, and is generally designated 
as the 

Code of 1806. —The Code of 1806 comprised 101 articles, with an 
additional provision relating to the punishment of spies. There has 
been no formal revision of the Articles of War since that date, al¬ 
though there was such a restatement of them in the revision of the 
statutes of 1874 as was possible under the authority which the revisers 
who prepared that revision had to bring together u all statutes which, 
from similarity of subject, ought to be brought together, omitting 
redundant or obsolete enactments, and making such alterations as may 
be necessary to reconcile the contradictions, supply the omissions, and 
amend the imperfections of the original text.” Under this limited 
authority no recasting of the articles or substantial amendment was 
possible, and the code as it appeared in the Revised Statutes of 1874, 
and as it was repeated in the second edition thereof in 1878, was 
substantially the Code of 1806, expanded to embrace amendments 
and new legislation since that date. It embraced 128 articles, with 
the additional provision as to spies, and these, with the amendments 
enacted since 1878, constitute 

The existing code .—It is thus accurate to say that during the long 
interval between 1806 and 1912—106 years—our military code has 
undergone no change except that which has been accomplished by 
piecemeal amendment. Of the 101 articles which made up the Code 
of 1806, 87 survive in our present code unchanged and most of the 
remainder without substantial change. Meantime the British code 
from which, as we have seen, these articles were largely taken has 
been, mainly through the medium of the army annual act, revised 
almost out of recognition, indicating that the Government with which 
it originated has recognized its inadaptability to modern service 
conditions. These facts, together with the fact that very few penal 
codes of the States of the Union have remained substantially un¬ 
amended for such a long period, suggest very strongly the propriety 
of revision, but they constitute, however, no conclusive argument in 
favor of revision, for it may well be urged that a code that has stood 
the test of experience for so many years and has governed our Army 
during three foreign wars and one civil war needs no material 
amendment or recasting. If. however, it is shown, as I think it can 
be. that the administration of military justice was seriously ob¬ 
structed, even under the mild test afforded by the Spanish-American 
War, and continues to be so obstructed under peace conditions, due 
to the retention in the code of provisions which, however well they 
may have served the purposes of the Army in the past, do not meet 
present conditions, or to the failure to enact new legislation, and that 
delays which impair the discipline and efficiency of the Army and 
which are easily avoidable result therefrom, the argument should not 
be considered controlling. 


6 


REVISION OF THE ARTICLES OF WAR. 


We entered upon our War with Spain, as upon our previous wars, 
relying upon the general court-martial for the trial of all offenses 
which could not be adequately punished within the limit of one 
month’s confinement and forfeiture which inferior courts were 
authorized to adjudge. 

Under the articles as they then existed and now exist this court is 
required to be composed of 13 officers, when that number can be 
assembled without manifest injury to the service, irrespective of the 
rank of the offender to be tried or the gravity of the offense charged 
against him. The authority to convene the general court-martial is 
vested in any general officer commanding an army, a territorial divi¬ 
sion or department, or a colonel commanding a separate department, 
in both peace and war. In war the authority to convene is vested 
also in commanders of tactical divisions and separate brigades. But 
when any of these convening authorities is the accuser or prosecutor 
of any person within his command, the court must be convened by 
the next higher authority in the case of a tactical division or separate 
brigade and by the President in other cases. The authority to con¬ 
vene the general court-martial is thus quite a restricted one, and the 
utility of this court stands further impaired by the provision of these 
articles which prohibits officers of the Regular Army from sitting on 
courts-martial to try officers and soldiers of other forces, a provision 
which, because of the fact that regulars, volunteers, and militia in the 
service of the United States have been, as a rule, brigaded together, 
often prevents the prompt convening of courts and is attended with 
resulting delays in the administration of military justice. 

Next below the general court stand the regimental and garrison 
courts, with jurisdiction, prior to March 2, 1901, to adjudge punish¬ 
ment within the limit of one month’s confinement and forfeiture, and 
since that date within the limit of three months’ confinement and for¬ 
feiture. Lowest in the judicial scale is the summary court created 
by the act of October 1. 1890, with punishing power extending to one 
month’s confinement and forfeiture, increased by the act of March 2. 
1901, to three months’ confinement and forfeiture upon the written 
consent of an accused to trial by such court. It is unnecessary in this 
connection to note the field officers’ court (abolished bv the act of 
June 18, 1898). It will be noted that the jurisdiction of the summary 
court, with the consent of an accused to trial thereby, is the full 
equivalent of the garrison and regimental courts, due to which fact 
the former has, since the enactment of the act of March 2, 1901, 
practically substituted the latter except in a limited class of cases. ’ 

It is thus made to appear that between the general court-martial, 
with its unwieldy membership, formal procedure, and unlimited 
power of punishment, on the one hand, and the summary court of 
one officer, with its summary procedure and limited punishing 
power, on the other, there is a wide gap, which the garrison and 
regimental courts of three members, but with power to impose 
punishment not exceeding that which the summary court has with 
the consent of an accused, do not fill. The inadequacy of the garrison 
and regimental courts as intermediate courts between these two is 
revealed by the following table, which gives the statistics as to trial 
by the several classes of courts above named for the fiscal vears 
1910 and 1911: * 


REVISION OF THE ARTICLES OF WAR. 


Courts. 

Number of trials. 

1910 

1911 

General courts-martial_ 

5,206 

305 

39 

42,275 

3,851 

103 

43 

33,082 

Garrison courts-martial. 

Regimental courts-martial. 

Summary courts-martial. 



Attempts have been made in the project of revision herewith sub¬ 
mitted to remedy these evils as follows: 

First, the requirement that the general court-martial must con¬ 
sist of 13 members when that number can be assembled without 
manifest injury to the service has been omitted. While it is now 
settled construction that this requirement is addressed to the dis¬ 
cretion of the convening authority, whose judgment as to the num¬ 
ber of officers who may be assembled for duty upon a court-martial 
is not reviewable by any superior authority, still a reference to con¬ 
vening orders shows that the attempt is habitually made by con¬ 
vening authorities to secure the maximum number authorized by 
law. even in relatively unimportant cases—cases of a purely dis¬ 
ciplinary character in which dishonorable discharge from the service 
is not contemplated or desired, and which a much smaller court 
could properly try. The result is a heavy draft on the time of the 
commissioned personnel of the Army. I am clearly of the opinion 
that we surrender no necessary safeguard in the administration of 
military justice when we leave the discretion of the convening au- 
thoity unrestricted as to the number of officers between the author¬ 
ized minimum of 5 and the authorized maximum of 13 which ought 
to be assembled for the trial of cases. 

Second, the authority to convene general courts-martial has been 
extended so as to meet the following conditions: In the Spanish- 
American War, and in the Philippine insurrection which followed, 
it was found necessary to organize numerous expeditionary forces 
and forces of occupation, and send them to remote parts of the 
islands. Many of these forces approached but did not reach the 
full equivalent of a statutory brigade, due to which their command¬ 
ing officers were without authority to convene general courts-martial. 
These are conditions which are liable to recur in any war in which 
the United States is likely to engage, and are therefore conditions 
for which provision should be made. Recently when, because of 
disturbed conditions on our southern frontier, there were organized 
separate brigades at Galveston, Tex., and San Diego, Cal., and a 
maneuver division at San Antonio, Tex., the deficiencies of the 
existing articles were again revealed in the fact that they gave to 
the general officers commanding these units no authority to convene 
general courts-martial. Further, the authority of the Superintend¬ 
ent of the Military Academy to convene such courts is, by the 
articles, limited to the courts for the trial of cadets, and, although 
there are always stationed at the academy specially selected officers in 
all the grades available for detail on court-martial duty, the super¬ 
intendent may not order a court for the trial of an officer or an 
enlisted man of his command. Article 8 of the project herewith 

















8 


REVISION OF THE ARTICLES OF WAR. 


preserves the authority to convene courts-martial to those who now 
have it, extends this authority to the commanders of divisions and 
separate brigades in time of peace, removes the restriction upon 
the authority of the Superintendent of the Military Academy to 
convene courts, and provides further that in case of brigade posts, 
expeditionary forces, and other forces not foreseen, the President 
may, when in his judgment necessary, specially empower the com¬ 
manders of said brigade posts and of said forces to convene general 
courts-martial. 

Third, the provision of existing articles making regular officers 
incompetent to sit on courts-martial for the trial of officers and 
soldiers of other forces has been modified so as to give accused 
officers and soldiers of other forces the right of peremptory challenge 
against regular officers detailed to sit on courts for their trial. The 
existing law (art, T7) assumes a disqualifying bias upon the part of all 
regular officers for such duty. So complete is the assumption that it 
is not necessary that the accused volunteer or militiaman should 
even exercise the right of challenge in order to remove regular officers 
from duty upon a court convened to try him. The law itself dis¬ 
qualifies the regular officer, and the disqualification is not one which 
the accused can waive. This is the authoritative ruling of the 
Supreme Court, which has further held that this disqualifying bias 
which the statute assumes extends to regular officers holding volun¬ 
teer commissions. Firm in the belief that the end sought to be 
attained by this law will be fully realized if the accused volunteer or 
militiaman is given the right of peremptory challenge against regular 
officers detailed upon a general courts-martial for his trial, I have 
drafted new article 4 so as to accord him this right. 

But to stop here would not afford the relief which service conditions 
demand. The wide gap between the general court and the summary 
court needs, I think, to be filled by an intermediate disciplinary 
court which will follow the Army under all conditions of its service, 
field or garrison, peace or war, with adequate power to impose dis¬ 
ciplinary punishments, but without the power to adjudge dishon¬ 
orable discharge. I am confirmed in this view by the report rendered 
by Capt. William E. Birkhimer. acting judge advocate, First 
Division, Eighth Army Corps, under date of March *20, 1899. Capt. 
(since Gen.) Birkhimer is the author of our standard work on military 
government and martial law, and has had prolonged service in the 
legal department of the Army. Writing in that report with reference 
to conditions during the period of the Philippine insurrection, Capt. 
Birkhimer said: 

I respectfully submit tlmt active military operations develop an evil in the ad¬ 
ministration of military justice through the instrumentality of general courts- 
martial as now authorized that loudly calls for remedy. Reference is here made 
to the unwieldiness of general courts-martial, both as to constituton and meth¬ 
ods of procedure. The practical result of this evil is that at such times it hap¬ 
pens that grave offenses have, in many instances, immunity from prompt and 
adequate punishment. Charges too serious to properly be sent before a sum¬ 
mary court are lodged against men, but because of the difficulties of bringing 
them to trial this is delayed until the cases are nearly or quite forgotten by those 
cognizant of the facts, and ail that salutary disciplinary influence resulting 
from prompt trial is lost. 

It will always be necessary to try the really graver charges by general courts- 
martial. This institution must therefore be preserved. 


REVISION OF THE ARTICLES OF WAR. 


9 


Hut between tbe cases that can appropriately be tried by summary court and 
those that must be referred for determination to general courts lie those that 
are much more numerous than the latter and for which a maximum punishment, 
say of six months’ confinement and forfeiture of six months’ pay, would be ade¬ 
quate and proper. It is for the prompt trial of the last class of cases mentioned 
that a new court should, it is respectfully submitted, be authorized by law. 

In articles 3, 6, 9. and 13 of the project herewith submitted an 
attempt has been made to create such a court as was recommended 
bv C’apt. Birkhimer. Its membership is to consist of from three to 
five officers, and it is given the authority to award punishment extend¬ 
ing to six months’ confinement and forfeiture and to proceed in the 
trial of cases without the formality of recording the evidence except 
when specially ordered so to do by the convening authority. As the 
court is intended to be primarily a disciplinary one it is placed by the 
proposed articles in the hands of those officers of our Army who are 
primarily responsible for discipline, viz. commanders of brigades, 
regiments, detached battalions, posts, camps, or other places where 
troops are on duty and the requisite number of officers may be ob¬ 
tained. The statistics of this office indicate that the court as thus 
organized ought to try approximately 40 per cent of the cases now 
tried by general courts-martial with the result that the time now 
consumed in these cases in forwarding charges to remote division 
headquarters and receiving them back approved for trial by general 
courts-martial and in sending to the same headquarters the completed 
proceedings of the trial for the action of the convening authority and 
in returning to the place of trial the orders publishing the sentence— 
often aggregating two months, and not infrequently exceeding three 
months—will be reduced to a period of two or three days. 

The only argument against establishing such a court which is enti¬ 
tled to consideration is that it involves a delegation of disciplinary 
power to the court and reviewing authorities which it has not here¬ 
tofore been deemed wise to make. I do not think that the argument 
has weight. The court and reviewing authorities will have the guid¬ 
ance of and be limited by the provisions of the maximum punishment 
order in adjudging and approving sentences. Further, the punish¬ 
ing power which is given it by statute, viz, six months’ confinement 
and forfeiture, does not extend beyond limits of punishment which 
police court judges throughout our country frequently exceed in dis¬ 
posing of criminal cases where the accused waives trial by jury. 

In the project of revision the special court substitutes the garrison 
and regimental courts, and the authorized courts, if the revision is 
enacted into law. will be: (1) The general court-martial, with its 
extended jurisdiction, to be resorted to in grave cases calling for dis¬ 
missal, dishonorable discharge, or prolonged detention in confine¬ 
ment with or without dishonorable discharge: (2) the special court 
for the trial of cases where the end sought is the retention of the 
offender with his command to be disciplined: and (3) the summary 
court for the trial of minor offenses calling for light punishments of 
confinement and forfeiture. 

The provision of the existing law that the summary court shall not 
adjudge confinement at hard labor or forfeiture of pay, or both, for 
a period exceeding one month, except upon the consent of the accused 
to trial by such "court, has been omitted. It is not believed that 
jurisdiction should ever depend upon the consent of an accused, but 


10 


REVISION OF THE ARTICLES OF WAR. 


the omission of the provision is called for by other considerations. 
Experience in administering the law as it now stands shows that 
only the worst characters avail themselves of this provision, in whose 
hands it becomes a weapon with which to obstruct the administration 
of military justice. Its omission for this reason alone would be 
justified. In lieu of the omitted provision a proviso has been inserted 
(see art. 14) that when the summary court officer is also the approv¬ 
ing officer no sentence adjudging punishment in excess of one month’s 
confinement and forfeiture shall be executed until approved by supe¬ 
rior authority. This, it is believed, is a sufficient safeguard. 

The limits assignable to a letter of transmittal of this character 
would be exceeded by an extended review of all the changes provided 
for in the project of revision herewith submitted. For this reason I 
limit myself to the brief summary which follows of the more impor¬ 
tant changes sought to be made. 

1. The existing articles are notably deficient in arrangement and 
classification. In the project herewith related provisions have been 
brought together under five principal headings, and where subheads 
would serve a purpose they have been employed. A complete classi¬ 
fication is thus presented in a manner that will facilitate study and 
understanding of the code. 

2. Provisions of the Revised Statutes and of acts of Congress in 
the nature of Articles of War, but not heretofore incorporated therein, 
have in the project been transferred thereto. Articles 2, 4, T, 8, 10, 
14, 22, 24, 31, 35, 37, 46, 48, 49, 50, 52, 54, 79, 80, 82, 106, 108, and 
114 embody such provisions. This codification will make it easier to 
find the law touching any particular question and thus facilitate 
prompt and correct administration. 


3. At present, in order to determine what persons in addition to 
officers and soldiers are subject to military law, it is necessary to 
examine scattered provisions of the Articles of War, the Revised 
Statutes, and acts of Congress, and supplement the information thus 
obtained by reference to the decisions of civil courts and the opinions 
of law officers of the Government. An effort has been made to elimi¬ 
nate the major portion of this difficulty by setting forth in article 2 
of the project a list of “ persons subject to military law ” 

4 Articles 1. 10, 11, 12, 29, 30, 36, 37, 53, 76, 87, and 101 of the 
existing code have been omitted. Some of these articles have never 
met any real need in our service and may for all practical purposes be 
regarded as obsolete; others embrace only matters properlv within 
the field of Army Regulations. 

5. Provisions relating to the same subject matter have been brought 
together in single articles so far as practicable. Notable instances 
ot the application of this rule may be found in article 48 of the 
project, which contains the substance of four articles of the existing 
code and of one section of the Revised Statutes, all of which have 
reference to the confirmation of sentences; and in article 60 of the 

uZThorle'fabsen^s 116 S ” bStanCe ° f Six 6Xisting articles relatin 8 t0 


6. Under the existing code larceny, robbery, burglary, arson maw 
hem, manslaughter and certain aggravated assaults are triabUin 
time of war as violations of the fifty-eighth article of war and at 
other times as violations of the sixty-second article of war—a fact 


REVISION OF THE ARTICLES OF WAR. 


11 


that is productive of confusion, uncertainty, and delay, especially 
at the outbreak of hostilities. This objectionable feature has been 
eliminated by making the offenses noted above triable under one and 
the same article, both in time of peace and in time of war. (See 
art. 93 of the project.) 

7. Under the existing code (see arts. 58 and 62) a person subject 
to military law may, in time of war, be tried by court-martial for 
murder or rape, but may not be so tried in time of peace. This 
state of the law makes it necessary to resort to a “provisional court” 
under conditions similar to those which existed in Cuba during the 
recent intervention. The fifty-eighth article of war was enacted at 
a time when the territorial jurisdiction of the United States did not 
extend beyond the geographical limits of what now constitutes the 
States of the Union and the District of Columbia. At that time con¬ 
ditions now existing as the result of the extension of the territorial 
jurisdiction of the United States were not in contemplation, or the 
fifty-eighth article would probably have taken a somewhat different 
form. In the project the article relating to murder and rape—article 
92—has been drawn so as to preclude trial by court-martial for those 
offenses when committed within the geographical limits of the States 
of the Union and the District of Columbia in time of peace, while 
conferring jurisdiction for the trial of these offenses when committed 
in time of war or beyond the geographical limits just indicated. 
The penalty for the offenses in question is fixed in conformity with 
the provisions of sections 275, 278, and 330 of the act of March 4, 
1909 (35 Stat., 1143, 1152). 

8. Our first statute of limitations upon prosecutions before courts- 
martial was article 88 of the Code of 1806. which is now the initial 
paragraph of article 103. The second paragraph of that article was 
added by the act of April 11,1890 (26 Stat., 54). In its original form 
the article was vague in its provisions. The effect of absence or of 
“ manifest impediment ” upon the running of the statute was not 
very clear; and the time when the statute began to run, or whether 
the article was applicable at all to prosecutions for desertion, did not 
clearly appear. The amendment of 1890 (second paragraph) deter¬ 
mined that the period during which a deserter was absent from the 
United States was to be excluded in computing the two-year limita¬ 
tion in case of desertion in time of peace. But the existing article, as 
a whole, leaves it as a matter of doubt whether desertion in time of 
war is or is not covered by the article. The correctness of the present 
official construction, that desertion in time of war is not covered, is 
open to serious doubt, and the necessity for amendment in this regard 
is therefore obvious. In the corresponding article in the project— 
article 40—desertion in time of war is excepted from the limitations, 
this being in accord with the official construction of the existing ar¬ 
ticle. The changes introduced are mainly for the purpose of con¬ 
forming more closely to the limitation prescribed by law in respect of 
criminal prosecutions in the courts of the United States. The exten¬ 
sive jurisdiction now exercised by courts-martial in respect of civil 
crimes and offenses committed by persons subject to military law, and 
which is retained in the project for revision, makes it desirable that 
the limitation upon prosecutions before courts-martial be substan¬ 
tially the same as the limitation upon prosecutions before civil courts 


12 


REVISION OF THE ARTICLES OF WAR. 


of criminal jurisdiction. The period now prescribed is, perhaps, suf¬ 
ficient for all practical purposes, so far as enlisted men are concerned: 
but under present service conditions, it is quite possible for the en¬ 
tire two-year period of limitation to elapse after a financial transac¬ 
tion by an officer before the fact that the transaction was criminal in 
character is disclosed or becomes sufficiently apparent to warrant the 
filing and reference of charges for trial. It is therefore believed to be 
essential to extend the period of limitation to three years. The force 
of the latter consideration and the consequent advisability of the 
proposed extension became apparent in a recent case of financial 
irregularity on the part of an officer, in which case it was necessary 
to resort to the civil courts of criminal jurisdiction, because trial by 
court-martial was barred by the military statute of limitations. 

9. It is difficult to extract from articles 122 and 124, as now in 
force, a workable rule concerning the rank and precedence of officers, 
when officers of the Regular Establishment, of the Militia, and of 
Volunteers are concerned. In the corresponding articles of the proj¬ 
ect—articles 118 and 119—an attempt has been made to state clearly 
a definite practicable rule. 

10. Under the present ninety-first article of war depositions of 
witnesses residing beyond the limits of the State. Territory, or 
District in which a court-martial is in session may be read in evi¬ 
dence before such court in cases not capital, the constitutional rule 
respecting the personal attendance of witnesses before the court be¬ 
ing inoperative in cases triable by courts-martial. The existing rule 
respecting depositions is, however, unsatisfactory in that it author¬ 
izes the use of a deposition when the witness resides just outside the 
State in which the court is in session, though perhaps only a few 
miles from the place of session, but does not permit the use of a 
deposition when the witness resides within the State, even though 
his place of residence may be three or four hundred miles from the 
place of session. Furthermore, the existing article makes no pro¬ 
vision for the taking of a deposition when the witness, by reason of 
age, sickness, bodily infirmity, or other reasonable cause, is unable 
to appear and testify in person at the place of trial or hearing. In 
the corresponding article in the project (art. 25) these deficiencies 
in the existing article have been supplied, the new article being drawn 
so as to conform in the main to the provisions of section 863 of the 
Revised Statutes. 

11. Article 96. as now in force, provides that “ no person shall be 
sentenced to suffer death except by the concurrence of two-thirds of 
the members of a general court-martial.” The article, however, 
leaves it open to a bare majority of the court to find the accused 
guilty of an offense for which tlie death sentence is mandatory, so 
that the article does not, as a matter of fact, furnish any special pro¬ 
tection to the accused in a case of this kind, in view of the obvious 
duty the court has to impose the sentence required by law upon a 
legal conviction. The corresponding article in the project (art. 44) 
has been drawn so as to require the concurrence of two-thirds of the 
members of the court in order to convict an accused person of an 
offense for which the death penalty is made mandatory bv law and 
also to require the concurrence of two-thirds of the members of the 
court in passing sentence of death in any case. 


REVISION OF THE ARTICLES OF WAR. 


13 


The foregoing list of changes is by no means complete, as there 
has been a general recasting of the articles, but it embraces the more 
important changes to which it is desirable to invite your especial 
attention and that of Congress in considering the feasibility of enact¬ 
ing the proposed revision; but the complete recasting of the articles 
has not extended to changing language which might be considered 
defective in form, but to which settled construction has assigned a 
definite meaning. The effort has been made to invalidate as little as 
possible of the construction which the existing articles have received 
administratively and bv the courts. 

Very respectfully. 


E. H. Crowder, 

Judge Advocate General. 












- 








REVISION OF THE ARTICLES OF WAR. 


H. It. 23628, INTRODUCED BY MR. HAY. 


House of Representatives, 
Committee on Military Affairs, 

Wdshington, D. C., May H, 1912. 

The committee convened at 10.30 o’clock a. m. 

Present: Hon. James Hay (chairman), Representatives Slay den, 
Watkins, Conry, Hughes, Sweet, Pepper, Evans, Prince, Kahn, 
Anthony, and Tilson. 

The Chairman. General, I would be glad if you would take this 
bill up and explain it in your own way. 

STATEMENT OF JUDGE ADVOCATE GEN. E. H. CROWDER. 

Gen. Crowder. I think I can get an exposition of the revision 
before the committee in the best form by making a short preliminary 
statement and then inviting attention to the new articles which have 
been added and the old articles which have been materially changed. 
In the course of my remarks I may have to repeat to some extent state¬ 
ments that I have made in the exposition of the articles in the letter 
of transmittal which is printed with this volume, but I shall do that 
only to a limited extent. [The general refers to a “ Comparison of 
proposed new Articles of War with the present Articles of War and 
other related statutes ” prepared by him.] 

The preliminary task in the preparation of this revision was one 
of classification. The old articles were notoriously deficient in that 
regard. Not only were punitive articles found associated with arti¬ 
cles that were purely administrative in character, but there were many 
provisions of the Revised Statutes and of the Statutes at Large, of 
the nature of articles of war proper to be incorporated in a military 
code, in order that the service might have convenient reference to all 
of the provisions of law which relate to courts-martial, their compo¬ 
sition, jurisdiction, and to provisions which denounce and punish 
crime. 

In the course of assembling the related provisions I have had to 
consult not only the existing code, which comprises 129 articles and 
the isolated provision in regard to the treatment of spies, but also 
9 separate sections of the Revised Statutes and 21 separate acts of 
Congress enacted since the revision of the statutes in 1874, and which 
contained provisions of the character that ought to be embodied in a 
military code. After bringing all these related provisions together 
I found it possible to state the new code in 119 articles, a reduction 

15 



16 


REVISION OF THE ARTICLES OF WAR. 


of 10 over the present code. I have pursued the plan of assembling 
these new articles under five heads, entitled: “ Preliminary provi¬ 
sions,” “ Courts-martial,” “ Punitive articles,” “ Courts of inquiry,” 
and “Miscellaneous provisions.” On the pages which follow that 
principal classification will be found the detailed classification, where 
the articles are further grouped under subordinate heads. 

In the first pages of the report you will find underscored in red all 
the new articles that have been proposed, and underscored in blue 
all the old articles that have been substantially changed. There arc 
•21 new articles and about 47 of the old articles that have been ma¬ 
terially changed. 

In the exposition of the project of revision which is printed in the 
first part of this project I have undertaken to trace the history of the 
present code. It is substantially the code of 1806, as 87 of the 101 
articles which made up that code survive in the present articles un¬ 
changed. and a considerable number of the remaining articles survive 
without substantial change. 

The 1806 code was a reenactment of the articles in force during 
the Revolutionary War period, with only such modifications as 
were necessary to adapt them to the Constitution of the United 
States: so that, in the light of what I have just said, the statement 
is not an inaccurate one that we are to-day living under the Revo¬ 
lutionary War articles as amended in piecemeal legislation enacted 
since 1806; that is, under a code which was enacted under the stress 
of war conditions, and, as I shall hereafter show, nearly all of the 
amendments which have since been made have been likewise enacted 
piecemeal during a period of war and under the stress of war needs. 

During the War of 1812 four articles were amended; during the 
period of the Seminole War three were amended, and one new 
article added. There were no amendments of the code during the 
War with Mexico, but during the Civil War period seventeen 
articles were amended and eight new articles added. All of these 
new articles and amendments were gathered into the restatement 
of the Articles of War which appears in the Revised Statutes of 
1874. and which is sometimes incorrectly called the Code of 1874; 
this would indicate that there was a substantial revision of the code 
in that year, which is not the fact. The revisers who prepared that 
revision had only a very limited authority; they could reconcile 
contradictions in the existing law, supply its omissions, and cure 
imperfections of phraseology; but beyond this their authority did 
not extend. 

Subsequent to the revision of 1874 we had some important legis¬ 
lation in the nature of Articles of War, in the establishment of the 
summary court by the act of October 1, 1890, and the grant of 
authority in the same year to the President to establish maximum 
limits of punishment in time of peace. This was followed bv cer¬ 
tain amendatory legislation during the period of the Spanish- 
American War, the purpose of which was to further define the 
jurisdiction of the summary court, and repealing articles 108 and 
110 of the code. Further legislation amendatory of the existing 
law respecting summary courts and repealing article 94 of the 
Articles of War was had in 1901. Article 122 of the existing code 
was amended in 1910, and article 128 repealed, but this constitutes 
all the amendments which have been had since 1806. 


REVISION OF THE ARTICLES OF WAR. 


17 


I think I have said enough to show that we are governing the 
Army to-day under a rather ancient code and one which has most 
of the defects of a code that has been compiled rather than written. 
That many of its provisions are archaic can be made apparent, I 
think, by a few examples. 

Take the fifty-fourth and fifty-fifth articles of war: By them we 
are admonished that our soldiers are not to be allowed to commit 
any waste or spoil within any walks, trees, parks, warrens, fish 
ponds, houses, gardens, cornfields, inclosures, or meadows. This is 
an enumeration which would hardly be found in any statute prepared 
especially for our Army, and indicates its British origin, where the 
enumeration would be appropriate. There is the further provision 
of these articles forbidding any kind of riot to the disquieting of 
“ citizens ” of the United States, which should of course have read 
“ inhabitants,” as ail persons residing within the United States are 
entitled to equal protection of the laws. Equally archaic is article 
59, providing that we shall turn over to the civil magistrate all 
officers and soldiers committing offenses against the person or prop¬ 
erty of any “ citizen of the United States,” which should, for the 
reasons stated above, have read “inhabitant of the United States”; 
and the further provision that such surrender to the civil magis¬ 
trate should be made only “ upon application duly made by or in 
behalf of the party injured,” ignoring the more modern doctrine 
that offenses are punished now at the instance of the public and 
not at the instance of any individual. We should, of course, turn 
over to the civil authorities on the application of the proper officers 
of the law. 

It may be further stated that there are a great many important 
omissions in the existing articles. It is rather a startling statement 
which I have to make, that there is included no grant of jurisdic¬ 
tion to the general court-marshal, except as to persons; as to offenses 
its jurisdiction is left to be inferred from the use of the word 
“ general.” 

Because of these defects and many others to which I will invite 
attention as I proceed with my’ remarks there has been necessity 
for a great deal of construction, and it is a fact that the efficacy of 
the existing code depends very largely upon the meaning that has 
been read into it by construction. It thus happens that young 
officers coming into the service are referred not to a concise, explicit'* 
code to ascertain what laws govern the Army, but to hundreds of 
pages of discussion of a very obscurely written series of articles. 

It is to be doubted if the Congress has ever been called upon to 
amend legislation which is as archaic in its character as our present 
Articles of War. 

The controlling principle in all military codes of the United 
States, as in the English codes from which they have been derived, 
is the subordination of the military to the civil authorities. Three 
or four of the existing articles are expressive of that principle, and 
I have attempted in the revision not to restrict its application in any" 
instance except one, to which I shall invite attention. In some re¬ 
spects the application of the principle has been extended. 

In the course of my remarks I shall have frequent occasion to refer 
to general courts-martial, by which we tried in the fiscal year of 
1910 more than 5,000 cases, and this is not far from the average 

46382—12-2 


18 


REVISION OE THE ARTICLES OE WAR. 


number of cases tried each year; also to a certain class of inferior 
courts, known as garrison, regimental, and summary courts-martial, 
by which in the year 1910 we tried about 42,000 cases—all in the na¬ 
ture of minor neglects and offenses incident to garrison life. 

The task of disposing of the large number of cases tried by infe¬ 
rior courts is not a burdensome one to the Army, for the reason that 
they are handled by tribunals with a summary procedure similar 
to that of police courts; but the burden of administering justice 
through the general court is a very heavy one, and the main reason 
for asking the enactment of new articles is to obtain relief along 
these lines. The new articles provide for the transfer of a part of 
the jurisdiction of the general court to a new court, which I have 
referred to in the exposition as a disciplinary court, but to which I 
have given the name of the “ special ” court for the want of a better. 
Perhaps the term “ garrison and field court ” would better describe 
its functions, but I was finally persuaded to adopt the name 
“special,” because that designation brought it into certain contrast 
with the “ general ” court. However, the name is not a very impor¬ 
tant matter. I will proceed to state the evils which the special 
court is designed to remedy, and which can be explained better by 
inviting the attention of the committee to the present practice in 
trying cases. 

Take for example a case arising in the garrison at Fort Bliss, lo¬ 
cated near El Paso, Tex. A soldier commits an offense against dis¬ 
cipline at that garrison, too serious to be tried by an inferior court. 
The charges are preferred, ordinarily by the company commander, 
and forwarded through post and department headquarters to the 
remote division headquarters at Chicago; they are there considered, 
and, if approved, orders issue for the trial and the papers go back 
to Fort Bliss, where the trial is had and the proceedings made up, 
and the record is then forwarded to Chicago. If, upon its exami¬ 
nation there, errors appear to have been committed in the course of 
the trial, the record is returned to Fort Bliss and the court reas¬ 
sembled for the consideration of these errors. Supplementary pro¬ 
ceedings are prepared and the record is again forwarded to Chicago, 
where, if it is approved in the form submitted, an order issues pub¬ 
lishing the proceedings of the trial, which is sent to Fort Bliss for 
execution. After all these delays, not infrequently approximating 
two months and sometimes more than four months, the soldier en¬ 
ters upon the execution of his disciplinary sentence—usually six 
months’ confinement. 

Now, it is in reference to this class of cases, namely, cases of a dis¬ 
ciplinary character, where it can be reasonably foreseen that the 
offender will be retained in the service and disciplined, that I am 
asking for the creation of this new special court. If I had taken 
for illustration a case arising in the Philippines Division the time 
limits I have stated would have been much greater, because the gar¬ 
risons in that division are more inaccessible and the mail communi¬ 
cation less frequent. Had a case been taken arising in the Eastern 
Division the time limits would have been somewhat less, but in the 
Western Division, at San Francisco, they would have been about the 
same. These delays are inherently unjust to the accused, to the 
Government, and, more than that, they are unnecessary in the class 
of cases to which I refer. 


REVISION OF THE ARTICLES OF WAR. 19 

Now, the special court which I have recommended will consist of 
from three to five members.- The periods of time—from two to four 
months will be reduced to from one to two days. Certainly a court 
const 1 tuted of from three to five officers can be trusted, under the 
guidance of a maximum-punishment order, to give sentence of that 
character- 

. The Chairman. What time would a defendant have to prepare 
his defense? 

Gen. Crowder. He is on his warning that he is to be tried im¬ 
mediately upon his arrest, and all this time elapses before he can be 
brought to trial. He is required to be furnished a copy of the charges 
within 24 hours from his arrest. He has thus ample time to prepare 
for his defense, and besides he is always afforded the opportunity to 
have counsel. Upon his request an officer is always provided to 
represent him at his trial. 

The Chairman. Under the plan that you suggest, what length 
of time would he have to get ready for the trial of the case? 

Gen. Crowder. Of course, when this new court meets he would 
to brought to trial very promptly; but in another article of war, 
to which I will call your attention later, a court is authorized to 
grant all reasonable delays and continuances upon the motion of the 
accused or his counsel, and his rights in this regard are as amply 
protected as in the civil courts. 

Mr. Prince. We are frequently called upon, as a military com¬ 
mittee, to pass upon court-martial proceedings; and from the num¬ 
ber of prima facie cases made out in a number of cases it appears 
that the offense (from the civilian standpoint) is simply inconse¬ 
quential ; yet the punishment seems to be extremely severe. Now, it 
may be necessary, from the military standpoint, to have the punish¬ 
ment severe. Would it be wise or unwise, from your viewpoint, to 
permit the defendant—officer, commissioned officer, or uncommis¬ 
sioned man—to have the right to have a civilian lawyer to properly 
defend him at the trial? 

Gen. Crowder. He has that privilege now. 

Mr. Prince. Well, it is a privilege I understand, but why not have 
it as a legislative right? 

Gen. Crowder. There has been some attempt to legislate in that 
direction in the existing code, and one of the articles of this revision 
considerably extends the operation of the existing statute in respect 
of the representation of the accused at the trial. 

Mr. Prince. A few days ago a Member of Congress appeared be¬ 
fore this committee and urged us to grant relief to a young man who 
had comparatively recently entered the Army. It was charged that 
he stole a pair of shoes, secondhand, worth not to exceed $2, and 
upon conviction this man was sentenced to six months’ imprisonment. 
Now, that is such a little petty larceny, from a. civilian standpoint, 
that the sentence is almost outrageous. 

Gen. Crowder. I can add to that case, with which I am familiar, 
two or three other cases of the same kind. I must say that the re¬ 
sponsibility for that rests largely with the War Department, and it is 
one of the evils for which I have not yet been able to suggest a 
remedy. We have an authority given us by Congress to fix maximum 
punishments, and we have promulgated a maximum-punishment 


20 


REVISION OF THE ARTICLES OF WAR. 


order that reads in substance: u Larceny of property of value under 
$20, dishonorable discharge and one year’s confinement.” In other 
words, the order does not distinguish between the larceny of $20 and 
larceny of 50 cents. 

Now, I had a case about six months ago that came up from the 
Department of Texas, where a soldier had taken from the bunk of 
his tentmate canteen credit checks of the value of 50 cents and appro¬ 
priated them. He was sentenced to one year’s imprisonment and dis¬ 
honorable discharge. I looked into it and soon had his sentence re¬ 
mitted. The conditions of barrack-room life and its associations re¬ 
quire extraordinary attention to the offense of larceny. The soldiers 
live in such a state of intimacy that they have unusual opportunities 
of that kind, and the barrack-room thief is about the worst element 
that can creep into a company. But it is my intention to submit at 
an early date a revision of the maximum-punishment order which 
will distinguish between the larceny of $20 and the larceny of lesser 
amounts. 

The Chairman. Wouldn’t a man stealing $5 be just as bad as a 
man stealing $20 ? 

Gen. Crowder. I think there is a good deal to be said in favor of 
that view; but I don’t think that is the general view or that our civil 
courts execute the law in that way. 

Mr. Prince. Well, there is a difference. They have a punishment 
for stealing certain amounts. 

The Chairman. On page 8 of the bill, at the end of article 16, you 
could say: “ Provided , That an officer shall have the right to select 
his own counsl.” 

Gen. Crowder. Administratively that would work this way: We 
have recently completed the trial of an officer charged with embezzle¬ 
ment in the Territory of Alaska. He selected as counsel an officer at 
Fort Leavenworth, and he asked the Government to send him to 
Alaska, paying his expenses. Now, if we give him the right to select 
his own counsel, irrespective of what the exigencies of the service 
may require, it will embarrass the administration of military justice. 
Every reasonable effort is now made to give the accused counsel of 
his own selection. 

Mr. Prince. Well, but in that connection see the amount of expense 
that a man has to pay in civil procedure. He can go to great expense 
and put the Government to great expense in demanding a jury. 
Sometimes it takes months to get a jury; but I don’t think the ex¬ 
pense ought to be taken into consideration when it is a serious offense; 
that is a minor matter. 

Mr. E vans. If a man is arrested in a civil proceeding he ought not 
to be given an opportunity to have a man come 4,500 miles to try his 
case. That would not be a ground for a continuance. 

Mr. Prince. No: but I mean, suppose you were sitting as a judge 
trying a man for murder, and the man made a special request to have 
counsel from New York, and that he could not get a fair trial with¬ 
out him? 

Mr. Evans. I should say, if it was prima facie, he should choose 
between all the lawyers between Alaska and New York. I would go 
down to the experts. 

Mr. Prince. There are good doctors all over the country: a man 
can send for expert doctors anywhere. 


REVISION OE THE ARTICLES OF WAR. 


21 


Mr. Anthony. Does the officer have the right to select his own 
counsel under the present law ? 

Gen. Crowder. It is not a matter of right. 

Mr. Anthony. It is not always granted an officer? 

Gen. Crowder. I don’t think there has been a single occasion of 
denial, but there have been occasions of denial of the services of a 
particular officer when he was needed for other duty, or where the 
distance was so considerable that it would involve great delay in the 
case. 

Mr. Anthony. What change do you make in the new articles? 

Gen. Crowder. The old article is one of the archaic articles. On 
page 8, at the top (or p. 17. at the bottom), the old article contains 
the provision [reading] : 

Art. 90. The judge advocate, or some person deputed by him or by the gen¬ 
eral or otlicer commanding the Army, detachment, or garrison, shalf prosecute 
in the name of the United States: but when the prisoner has made his plea he 
shall so far consider himself counsel for the prisoner as to object to any leading 
cjuestion to any of the witnesses, and to any question to the prisoner the answer 
to which might tend to criminate himself. 

Now, that devolves upon the judge advocate when the accused is 
not represented by counsel, but one of the duties of counsel for the de¬ 
fense, namely, to object to leading questions. I substitute for that 
language the following [reading] : 

But should the accused be unrepresented by counsel, the judge advocate will, 
from time to time throughout the proceedings, advise the accused of his legal 
rights. 

It is absolutely impossible for the judge advocate, as a prosecutor, 
io take over all the duties of a counsel. The object here is to make 
him a kind of minister of justice when the accused is not provided 
with counsel. 

Mr. Evans. Mr. Kahn suggests: “ It shall be the duty of the judge 
advocate, from time to time,” etc. 

Gen. Crowder. I would consent to that change. 

Mr. Kahn. “The judge advocate shall” etc. 

Gen. Croavder. That is the present application of the law. 

Mr. Prince. Now. General, I did not want to break in on you. 

Gen. Crowder. I have finished Avhat I had to say about "the new 
disciplinary court. That will give a large measure of relief from the 
burden we noAV have of administering justice through the agency of 
general courts-martial. But the project carries two other reforms, 
in this connection: One is in respect to the constitution of general 
courts-martial. The present authority to com^ene them is quite a 
restricted one. Take, for example, the experience of the summer of 
1911. We assembled a separate brigade at San Diego, Cal., and an¬ 
other at Galveston. Tex., and a maneuver division at San Antonio, 
Tex. Under the present condition of the Articles of War the com¬ 
manders were not able to order courts-martial. They can now only 
com^ene courts-martial in time of war—that is, division and separate 
brigade commanders. 

Take another case: A state of Avar exists and we mobilize an Army 
corps with its constituent divisions. The corps commander can 
not convene a court-martial, except in a particular case, Avhen his 
division commanders happen to be the accusers of the person to be 
tried. 


22 


REVISION OF THE ARTICLES OF WAR. 


The Chairman. The subordinate officer has more of power than 
the corps commander? . 

Gen. Crowder. Yes; the division commander has more authority 
than the corps commander. If a case arises where the corps com¬ 
mander is convinced that a court-martial is necessary he may bring 
the necessity of trial in that case to the attention of the division 
commander, who may have already considered the case and decided 
that a trial was not necessary in the interest of discipline. In the 
normal case it is to be supposed that the corps commander would 
possibly order the division commander to convene the court, and it 
would be a rather serious question, which I hope we shall not be 
called upon to decide, whether, the law having vested the discretion 
in the division commander, the exercise of that discretion can be 
controlled by superior authority. The legislation that I have pro¬ 
posed would make it quite impossible for this question to arise. 

Mr. Evans. What article do you find the new provision in ? 

Gen. Crowder. Article 8, “ General courts-martial—by whom ap¬ 
pointed.” 

The Chairman (reading) : 

The President of the United States, the commanding officer of a territorial 
division or department, the Superintendent of the Military Academy, the com¬ 
manding officer of an Army, a field Army, an Army corps, a division, or a 
separate .brigade, and when empowered by the President, the commanding 
officer of any district or of any force or body of troops, may appoint general 
courts-martial whenever necessary; but when any such commander is the 
accuser or the prosecutor of the person or persons to be tried the court shall 
be appointed by superior competent authority. 

Gen. Crowder. I have included the President of the United States 
for the reason that, notwithstanding he is the Commander in Chief 
of the Army, his authority to convene a court-martial was denied 
in one case, or rather questioned, because of the fact that the exist¬ 
ing law provided that he could appoint only when certain other 
officers were the accusers. They said that that statute, by necessary 
inference, denied his right to act in other cases. 

But in the Judge Advocate General Swain litigation the Supreme 
Court of the United States held that the authority was inherent in 
the President as commander in chief, and that he could always con¬ 
vene a court-martial when necessary. Therefore, I have inserted 
the term “ President of the United States.” 

Now, when you come to the next: The commander of a territorial 
division or department, you are repeating the existing law. The 
Superintendent of the Military Academy now has a limited au¬ 
thority to convene courts-martial; that is, he can try cadets. I have 
given him plenary authority in this provision. 

The Chairman. Don’t you think you had better confine his au¬ 
thority to the trial of cadets and enlisted men, for the reason that 
the superintendent might be only a captain or a major, and he is 
up there over colonels and lieutenant colonels? 

Gen. Crowder. Well, if you can look forward in the administra¬ 
tion of the Army far enough to see when the Superintendent of the 
Military Academy will be an officer of such inferior rank, I 
think- 

Mr. Tilson. But that is the reason. 

The Chairman. You know Gen. Mills was only captain when he 
was appointed superintendent. 


REVISION OF THE ARTICLES OF WAR. 


23 


Gen. Crowder. I would get all that I want if I could have author¬ 
ity to try enlisted men and cadets. I don’t like this idea of depen¬ 
dence upon a commanding general of the Eastern Division for the 
discipline of the Military Academy detachment. 

The Chairman. Well, but you can not tell just who is going to be 
appointed there. Gen. Schofield was a lieutenant general. 

Gen. Crowder. Officers of the Engineer Corps with field rank have 
been appointed. During my period at the academy the superin¬ 
tendent was Gen. Howard, and then came Gen. Schofield, and he was 
followed by Gen. Merritt. It was not until some time after that they 
went back to the system of designating officers below the grade of 
general. 

The Chairman. Gen. Mills was a colonel? 

Gen. Crowder. Yes, sir. 

The Chairman. Gen. Scott was a major? 

Gen. Crowder. Yes, sir. Scott was succeeded by a major general. 
The change could be made, Mr. Chairman, by striking out the words: 
“ The Superintendent of the Military Academy ” and substituting 
at the end the phraseology: “The Superintendent of the Military 
Academy shall likewise have power to convene courts-martial for the 
trial of cadets and of enlisted men of his command.” 

Mr. Tilson. That will be sufficient. 

Gen. Crowder. Yes, sir. 

Mr. Prince. I suggest that we start at the first article. 

Gen. Crowder. And go through the entire code ? 

The Chairman. Yes. 

Gen. Crowder. That would make the presentation easier. Man} r 
of the articles require no comment. 

The Chairman. Now, General. 

Gen. Crowder. You will find in the right-hand column, of course, 
the old law, and the new in the left-hand column. On the very first 
page I would invite your attention to the fact that we had to look 
at the enacting clause of the old law, and then at article 64 of that 
law to ascertain who were subject to the articles and governed by 
them. An attempt has been made to remedy this in section 1342, on 
the first page, and article 2 on the next page. 

Mr. Prince. You have added the words: “And all persons now or 
hereafter made subject to military law.” 

Gen. Crowder. Yes; to include certain persons made subject to 
military law without being in the Army—paymaster’s clerks, re¬ 
tainers in the camp who, during the war, do not belong to the Army, 
and others whom Congress may at some future time bring under 
the articles. 

Mr. Prince. This would apply to all clerks in the supply corps ? 

Gen. Crowder. It would apply to that corps. 

The Chairman. There are no clerks in the supply corps; they 
are all enlisted men. 

Mr. Prince. In the new supply corps—I think it would apply 
to everybody in the corps. 

Mr. Tilson. Does it also cover civilian teamsters? 

Gen. Crowder. In time of war they become retainers to the camp. 
We will get at that in article 2. 

You will notice that the first article is given over wholly to defini¬ 
tion, and that subdivisions (a) and (b) are a substantial repetition 


24 REVISION OF THE ARTICLES OF WAR. 

of the existing law. There has been added subdivision (c), defining 
“ company ” as the equivalent of a troop or battery, and subdivision 
(d), defining “battalion” as the equivalent of squadron. This has 
been done for convenience in drafting subsequent articles, to get 
certain descriptive terms that will avoid the necessity for repetition. 

We now come to article 2 of the revision. There has been such an 
enumeration here as will make it unnecessary if this code is enacted 
to look elsewhere to ascertain who are within the military jurisdic¬ 
tion. I have drawn into the domain of this article all the special 
legislation we have had on this subject of jurisdiction as to persons, 
with one exception. Existing legislation, held by the Attorney Gen¬ 
eral and by the Judge Advocate General to be clearly unconstitu¬ 
tional, provides that inmates of the volunteer soldiers’ homes are to 
be subject to the Articles of War. The statute has, so far as I can 
inform myself, never received any execution. While I have not 
included this, I have not undertaken to repeal the law by making 
any reference to the sections of the Revised Statutes conferring this 
extraordinary jurisdiction in the repealing clause which will be found 
at the end of the project. 

Mr. Evans. But if you want this adopted, and it passes, then it 
contains a complete statement on its face of the persons who are 
subject to the Articles of War? 

The Chairman. It would leave that law still in force. 

Mr. Evans. Do you think so? 

The Chairman. Certainly. 

Mr. Evans. If we pass this, and it contains all the persons who 
are subject to military law- 

Gen. Crowder. No; I didn’t say all the persons. 

Mr. Tilson. You will find that the Articles of War do not contain 
anything about the old soldiers. 

The Chairman. They have nothing to do with the Army, therefore 
you don’t have to say anything about them. If anybody desires to 
introduce a bill to repeal that particular provision, that can be done. 

Mr. Evans. That is, the statutory provision. 

Gen. Crowder. Article 3 is simply declaratory of the three classes 
of courts. 

Mr. Prince. Now, let’s see [reading] : 

In time of war all retainers to the camp and all persons accompanying or 
serving with the armies— 

are subject to military law. 

Gen. Crowder. That provision is from the existing sixty-third 
article of war. The words “accompanying or’’ are new and are in¬ 
tended to cover attaches who accompany the Army but who do not 
necessarily serve with the field Army.' The phrase includes also 
newspaper correspondents; we have been trying them in every war 
we have had for divulging military secrets and nonconformity with 
regulations and like offenses. 

Mr. Prince. Have you ever tried any of them? 

Gen. Crowder. Yes; you will recall that in the Civil War Gen. 
Sherman brought some men to trial. 

Mr. Prince. Yes. Then, as a matter of fact, you have been exer¬ 
cising that authority, claiming that you had the right for the good 
of the public ? 

Gen. Crowder. Yes. 


REVISION OF THE ARTICLES OF WAR. 


25 


Mr. Tilson. You construed the law to cover them? 

Gen. Crowder. Yes. 

Mr. Hughes. There might not be any question about it. 

Mr. Tilson. However, that covers the ground. He might give 
away the screts of the general and spoil the whole campaign. 

Gen. Crowder. The country at large will not recognize this as con¬ 
ferring any new jurisdiction. We are now dealing with what we 
have hitherto read into the articles by construction. 

Mr. Prince. I think you have it right here: “ In time of war.” 

Mr. Tilson. That is right. 

Gen. Crowder. Now, article 4 will claim your special attention, 
because it involves a radical change in the existing law. Under 
article 77 officers of the Regular Army are declared incompetent to 
sit on a court-martial to try the officers or soldiers of other forces. 
That was construed during the Civil War as rendering these officers 
absolutely incompetent to sit on courts for trial of Volunteers or 
militia and mixed courts of regular and volunteer or militia officers 
were held to be unauthorized and illegal. Consent by an accused 
would not under the ruling make the court legal. 

In the Spanish-American War the number of Volunteers called 
out was about equal to the number of Regulars employed, and the 
two classes of troops were brigaded together or otherwise associated 
in small commands. It became next to impossible to convene courts 
for the trial of Volunteers composed exclusively of volunteer officers, 
and in this situation the Judge Advocate General was called upon for 
an opinion as to whether mixed courts would be legal. He rendered 
a decision to the effect that the manner of bringing Volunteers into 
the service of the United States during the Spanish-American War 
period differed in a substantial way from the manner employed in 
previous wars and held that the volunteer forces of that period need 
not be considered “ other forces ” within the meaning of the seventy- 
seventh article of war. He sustained the legality of mixed courts. 
During the Spanish-American War one Deming, a volunteer captain 
of the Subsistence Department, was tried for the embezzlement of 
funds in his official custody by a court of regular officers; he was 
found guilty and sentenced to dismissal and imprisonment. The 
Leavenworth Prison was designated as the place for the execution of 
the sentence, and Deming was confined there. He sued out a writ of 
habeas corpus alleging that the sentence of the court was illegal in 
that the court was illegally constituted of regular officers. The case 
was heard by the United States circuit court, which denied the writ. 
An appeal was taken to the United States Court of Appeals at St. 
Louis and that court, by unanimous decision, discharged Deming 
from custody. A writ of error was sued out to the Supreme Court 
of the United States and the case came on to be heard by that court, 
which confirmed the decision of the court of appeals, with two dis¬ 
senting votes, holding that officers of the Regular Army were incom¬ 
petent to sit on courts-martial for the trial of Volunteers, and that 
the fact that the accused failed to challenge the regular officers was 
immaterial; that the law itself rendered them incompetent and their 
detail upon such a court illegal. In a subsequent case the court ex¬ 
tended this doctrine, holding that a regular officer was disqualified 
to sit on a court-martial for the trial of a volunteer, even though he 
was holding a temporary commission in the Volunteers and on an 


26 


REVISION OF THE ARTICLES OF WAR. 


indefinite leave of absence from his regiment. A very large per¬ 
centage of the trials by court-martial during the War with Spain 
were invalidated as the result of this decision. 

In 1903 the Dick bill was passed bringing the National Guard and 
the Eegular Army into closer relations, the attempt being made to I 
unify the force and to make the National Guard and the Regular 
Army a part of our first line. It was therein provided that a major- I 
ity membership of courts-martial for the trial of officers and men of 
the militia when in the service of the United States should be com¬ 
posed of militia officers (sec. 9, act of Jan. 21, 1903). This is an 
awkward provision, for, the reason that in the course of a trial the 
majority may be disturbed by challenge, sickness, or other cause. In 
the new article I have inserted a provision giving to accused officers 
and soldiers the right of peremptory challenge against officers of the 
Regular Army detailed to sit on courts for their trial. Personally I 
am of the view that there should be no restriction at all upon the de¬ 
tail of regular officers on court-martial duty, particularly for the 
reason that not only does existing legislation, but certain legislation 
which is proposed, contemplate making the militia the exclusive reli¬ 
ance for the increments of citizen soldiers which we need to raise a 
war army, and contemplates still closer relations between the Reg¬ 
ular Army and these increments of citizen soldiery. But if any re¬ 
striction is to be maintained, I think it should be limited to giving 
the right of peremptory challenge. It is interesting to note in this 
connection that my predecessor in the Judge Advocate General’s 
office made an investigation which disclosed the fact that the sen¬ 
tences imposed by courts composed exclusively of Volunteer officers 
were generally more severe than those imposed by courts composed of 
Regular officers. 

Mr. Tilson. Has not the reason for this law largely passed away? 

Gen. Crowder. I think so. 

Mr. Evans. Why should we, then, preserve the right of peremp¬ 
tory challenge? I can’t see any reason for it. If the two are serv¬ 
ing together, the Regular Army and the Volunteers in the same war, 
for the same purposes, the idea that there should be a distinction 
would create the impres'sion that there is a party within a party. I 
don’t believe it is wise to preserve such a restriction. 

Gen. Crowder. It impairs the unity of the force. But I want to be 
entirely frank. I think that there is a respectable minority of the 
National Guard that favor restricting the eligibility of" regular 
officers for court-martial duty. 

Mr. Tilson. I really think that you are taking a backward step 
so far as the rights are concerned, because the Dick bill prescribed 
that half of them might be Regulars. 

Gen. Crowder. No; a minority. 

Mr. Tilson. There might be one less than half of them Regulars 
under the Dick bill, and under this none but a majority could be 
selected. 

Gen. Crowder. The Dick bill involved the difficulty of maintaining 
a majority, and I want to get some substitute for that. 

Mr. Evans. Then they might all be challenged. 

Mr. Hughes. I think you have brought it clearly to our attention. 

Gen. Crowder. In article 5 there has been an omission of the re¬ 
quirement of the law that we must have courts of 13 members when 



REVISION OF THE ARTICLES OF WAR. 


27 


they can be had without injury to the service. I earnestly believe 
we ought now to be relieved of that requirement. I think if the con¬ 
vening authority can convene 13 officers he ought to do so in an im¬ 
portant case, but I think it involves unnecessary expense to require 
him to do so in all cases. The old requirement is based upon the 
analogy of a judge and a jury of 12. 

Mr. Tilson. It would be more like a jury of judges? 

Gen. Crowder. Yes, sir. In article 7 the summary court is left as 
it was in the old law. 

The Chairman. Shouldn’t there be a statement there that when 
the parties shall desire it they should have 13 ? 

Gen. Crowder. I think you can trust to the discretion of any officer 
authorized to assemble a court-martial to convene 13 when it is 
proper to do so. 

Mr. Hughes. The very fact that 13 were provided for would seem 
to indicate that they should be assembled in grave cases ? 

Gen. Crowder. Yes, sir. 

I might interject here the remark that the administration of mili¬ 
tary justice differs from that of civil justice in that every case is 
appealed. There is always somebody above the trial court authorized 
to act by way of disapproval. 

Mr. Hughes. As a matter of fact, every case is appealed? 

Gen. Crowder. Yes, sir. Article 8 was discussed awhile ago. 

Mr. Hughes. I think we agree as to that. 

Gen. Crowder. Now, article 9 refers to the new special court. 
While there is a good deal of underscoring in that line, it is simply 
a restatement of the old law. It contains one provision which is 
new to the law [reading] : 

But such special courts-martial may in any case be appointed by superior 
authority when by the latter deemed desirable. 

That is the concluding provision. We are making a provision for 
a new court and placing it in new hands. I thought it would be 
wise to provide that if the superior officer found a misuse of this 
power by a subordinate he could at once assume it for himself. 

| Mr. Prince. Could there be any conflict of power there? 

Gen. Crowder. No, sir; I think not. 

Mr. Prince. Are you governed a great deal in your findings in 
courts-martial generally by precedents of other courts-martial, or is 
each case a law and rule unto itself ? 

Gen. Crowder. Well, a few years ago the courts-martial were a 
!| great deal better acquainted with the service precedents than now, 

I but I think to a reasonable degree they are governed to-day bv 
precedent. 

! Mr. Hughes. And the cases will be argued just as civil cases? 

Gen. Crowder. As a rule the important cases are, and the pro¬ 
cedure is so similar: to that of the civil courts that civil lawyers are 
j not embarrassed in trying military cases. 

Mr. Hughes. Yes; but do the military lawyers assemble the au- 
i thorities and present them on a side? 

Gen. Crowder. Oh, yes; that is pretty general. 

Mr. Prince. Do you have some pretty clever fellows to detend 

these men? 

Gen. Crowder. We have about 75 who came into the Army in 
1901 who were practicing lawyers when they came in, and they give 






28 


REVISION OF THE ARTICLES OF WAR. 


us a very respectable nucleus of officers competent to assume the 
duties of counsel. 

Mr. Prince. And they are scattered around ? 

Gen. Crowder. Yes, sir; and they are called into requisition as 
they are demanded. 

Mr. Prince. Now, do some of these men finally work their way up 
into your department ? 

Gen. Crowder. I have four of them now in my department, and 
when a vacancy occurs I recommend to the Secretary of War one of 
that class of officers. 

The Chairman. Article 11 carries one change, and that is for the 
appointment of an assistant judge advocate for general courts- 
martial. 

Gen. Crowder. My primary purpose in that was to get a chance 
to educate young officers in the practice of trying cases. Sometimes 
the services of an assistant will be needed in the trial of an impor¬ 
tant case. That is all there is new in that article. 

Article 12 is a new article. It simply declares the jurisdiction of 
the general courts-martial. I take it there is no impropriety in mak¬ 
ing that a matter of express provision. 

Article 13 deals with the jurisdiction of the new special court, anti 
it is substantially identical with the old articles 81 and 82, except 
the proviso. I have inserted there the language [reading] : 

That the President may, by regulations which he may modify from time to 
time, except from the jurisdiction of special courts-martial any class or classes 
of persons subject to military law.” 

You will observe that they have jurisdiction to try any person 
subject to military law, except an officer, for any crime or offense 
not capital made punishable by these articles. Now, there will be 
a large number of civilians accompanying the Army in war, some 
of them in pretty high stations of life. The President should have 
the right to say that these persons should be tried as officers. We 
ordinarily do have very distinguished men accompanying the Army 
in the field, who should be brought to trial, if necessary, with the 
same formality as commissioned officers. It may be also that future 
legislation of Congress may create some special grade of noncom¬ 
missioned officers, whom the President would wish tried as officers. 
You will notice that the maximum punishment that can be imposed 
by the new court is six months’ forfeiture of pay and six months’ 
confinement. 

Article 14 fixes the jurisdiction of the summary court-martial, both 
as to persons and offenses, and follows the language of the old law, 
except in one regard. In the old article the limit of punishing power 
of the summary court is three months with the consent of the 
accused to trial thereby, and one month without such consent. Under 
the new article it is three months in all cases, but it is provided that 
when the summary court officer is the only officer present with the 
command a sentence in excess of one month must be approved by 
higher authority. It is believed that this is a sufficient safeguard. * 

Mr. Hughes. That would guard against any prejudice? 

Gen. Crowder. Any prejudice against the man. 

The next article, No. 15, is entirely new, and the reason for its 
insertion in the code are these: In our war with Mexico two war 
courts were brought into existence by orders of Gen. Scott, viz, the 


REVISION OF THE ARTICLES OF WAR. 


29 


military commission and the council of war. By the military com¬ 
mission Gen. Scott tried cases cognizable in time of peace by civil 
courts, and by the council of war he tried offenses against the laws of 
war. The council of war did not survive the Mexican War period, 
and in our subsequent wars its jurisdiction has been taken over by 
the military commission, which during the Civil War period tried 
more than 2,000 cases. While the military commission has not been 
formally authorized by statute, its jurisdiction as a war court has 
been upheld by the Supreme Court of the United States. It is an 
institution of the greatest importance in a period of war and should be 
preserved. In the new code the jurisdiction of courts-martial has 
been somewhat amplified by the introduction of the phrase “ Persons 
subject to military law.” There will be more instances in the future 
than in the past when the jurisdiction of courts-martial will overlap 
that of the war courts, and the question would arise whether Con¬ 
gress having vested jurisdiction by statute the common law of war 
jurisdiction was not ousted. I wish to make it perfectly plain by 
the new article that in such cases the jurisdiction of the war court 
is concurrent. 

Article 16 repeats, with only slight verbal change, the provisions 
of article 79, and we come to the subhead “ Procedure ” and article 
17, which deals with the duties of the judge advocate. The under¬ 
scored language in this article introduces a modification respecting 
the representation of the accused by counsel. 

Mr. Hughes. It seems to me there ought to be some more definite 
provision made in article 17 for the right of the defendant to employ 
civilian counsel at his own expense, provided it does not interfere 
with the trial. This provision is for where he has no counsel at all ? 

Gen. Crowder. Yes, sir; that is it. The authority we have for the 
employment of counsel is given by an Army regulation which works 
satisfactorily, and in the experimental stage I would be glad to have 
it left there. There is no complaint from the service in that regard. 

Mr. Tilson. Don’t you think it would be interpreted as relieving 
the judge advocate, to some extent, of advising the accused? “ He 
shall from time to time advise the accused of his legal rights.” In 
the old article 90 it says: 

He shall so far consider himself counsel for the prisoner as to object to any 
leading question to any of the witnesses and to any question to the prisoner the 
answer to which might tend to criminate himself. 

In other words, it is specifically to protect the prisoner. 

Now, in article 17 it leaves it very much to the discretion of the 
judge advocate as to what legal rights he shall advise him of. 

Mr. Hughes. He is naturally the attorney for the Government, and 
he would be inclined to look out for the rights of the Government. 

Mr. Tilson. Yes; but it provides that the accused shall be ad¬ 
vised by the judge advocate. Now, the particular things are omitted 
from this article, and we have only the general statement that he 
shall be advised of his legal rights. 

Gen. Crowder. I would be willing to have the article amended by 
inserting, after the words “judge advocate,” in line 9, the words of 
the old article: 

Will so far consider himself tlie counsel for the prisoner as to object to any 
leading question to the witnesses. 



30 REVISION OF THE ARTICLES OF WAR. 

The Chairman. Would you be in favor of that pait. 

And to any question to the prisoner the answer to which might tend to crimi¬ 
nate himsell 

Gen Crowder. That is one of the archaic provisions of the code. 

It seems to relate to the time when it was possible to put the prisoner 
on the stand and make him testify against himself. 

The Chairman. Suppose a question was asked, the answer to which 
would tend to criminate himself, wouldn’t it be the duty of the judge 
advocate to advise the prisoner ? . 

Gen. Crowder. Yes, sir; it is done to-day. I don t object, as L 
say, to the specific provisions of old article 90 being included m the 

new article. . . . 

The Chairman. I think very frequently in criminal trials a ques¬ 
tion is asked—sometimes with malice aforethought and sometimes 
otherwise—the answer to which would tend to criminate the accused. 
That is a very general occurrence. 

Gen. Croavder. I have no objection to the change. 

Mr. Prince. Would you object to saying, “ If the accused has no 
counsel, civil or military ” ? 

Gen. Croavder. It would bring into the statute the recognition of 
the practice of employing civil counsel. 

Mr. Tilson. Shouldn’t that come in somewhere else, affirmatively, 
that he shall have that right ? 

Mr. Prince. That is all right. 

Gen. Croavder. We come now to article 18, which deals with chal¬ 
lenge. The new article is a departure from the old in but one re¬ 
gard—the Government is given the right of challenge, whereas the 
old article gave it to the accused only; but the article has been con¬ 
strued from time immemorial as making the right mutual, and Mr. 
Winthrbp, our standard authority, says of this construction that 
u Resting on long-established usage, it is now too late to dispute its 
authority.” It is not desirable, however, that this important right 
should continue to rest upon construction, especially Avhere the letter 
of the law does not support that construction. I have therefore made 
it a matter of express provision. 

New article 19 states the oath of members and judge advocates 
of courts-martial. There is no change from the old law except in 
one regard. The old article required the judge advocate to be sworn 
not to disclose or discover the vote or opinion of any particular mem¬ 
ber of the court-martial. This has been a requirement since 1806. 
but by an act of Congress approved July 27, 1892, judge advocates 
were excluded from the closed sessions of the court (new art. 31). 
Since the enactment of that laAv the judge advocate has had no op¬ 
portunity to discover the vote or opinion of a member of the court- 
martial which Avas not shared by the public. There is, therefore, no 
reason for continuing this requirement, and the new article omits it, 
Mr. Prince. Going back to article 18, there is no right of peremp¬ 
tory challenge? 

Gen. Croavder. None at all. 

Mr. Prince. The man has to state his ground of challenge to the 
court? 

Gen. Crowder. Yes. 

Mr. Prince. And if the court does not see fit to grant it, that ends 
the matter? 




REVISION OF THE ARTICLES OF WAR. 


31 


Gen. Crowder. That has always been characteristic of our military 
law. 

Mr. Prince. Wouldn’t it be an innovation to give him a few per¬ 
emptory challenges ? 

Gen. Crowder. It would be an innovation, and I think an unwise 
one. 

Mr. Hughes. In other words, your panel of the jurv would be too 
extended ? 

Gen. Crowder. Our panel is limited only by the available com¬ 
missioned personnel. 

Mr. Prince. The only question is whether that very wise safe¬ 
guard, running down from centuries- 

i Mr. Evans*. The very history of centuries is against you. That 
i is only as to civil cases. 

Mr. Prince. I am one of the fellows that believe in the jury. 

The Chairman. Isn’t it true that the various criminal codes of 
the United States provide for a larger number of challenges in 
criminal cases than in civil cases? 

Mr. Prince. Certainly. 

The Chairman. Then, there might be a need for peremptory 
challenges in these cases because they are criminal. 

Mr. Evan. Then, you would have to revise the whole system, be¬ 
cause there are different reasons in civil cases. 

The Chairman. Well, but if it is founded on good common sense, 
good reason, and good law, wouldn’t that same reason apply to this 
kind of cases? And if it does, are the objections on account of the 
summary nature of the proceedings sufficient to overcome the 
reasons ? 

Gen. Crowder. I think you have stated the situation very fairly, 
and my own comment would be that the conditions of this special 
, jurisdiction are sufficient to overcome the reasons. 

The Chairman. Isn’t it a fact that in the old trials in the Army 
no injustice has been done by reason of the failure to exercise this 
peremptory challenge ? 

Gen. Crowder. I think so. I do not recall any instance in which 
that has occurred or complaint has been made. 

Mr. Hughes. How many challenges shall be exercised for cause? 

I Gen. Crowder. The right is not limited. 

The Chairman. Now, in that connection, wouldn’t there be a hesi¬ 
tancy, just as there is in civil courts, toward challenging a man for 
cause if there was a possibility that it would not be sustained? 
For instance, if the challenge 'is overruled it would be likely to 
leave a bad taste in the mouth of a juror. Suppose there is something 
between the two men that nobody knows about but those two, and 
j neither one of them wants it to be known, and yet the accused knows 
there is a prejudice and if he states it publicly he incurs more of a 
feeling, and if he does not do it his rights are prejudiced? 

I Gen Crowder. That is as true of courts-martial as of civil courts. 
Human nature is likely to be the same in both cases. The right of 
peremptory challenge, which is common to our civil courts, has never 
had a place in our military jurisprudence. This is a concession to 
the summary character of' the military jurisdiction and is not the 
onlv instance where the fact is made manifest that a soldier when 





32 


REVISION OF THE ARTICLES OF WAR. 


he takes on the obligations of an enlistment contract surrenders 
rights which he had as a civilian. Our military jurisprudence is 
based upon this fact, which has constitutional recognition, in that the 
Constitution excepts from the requirement that no person shall be 
held to answer for a capital or otherwise infamous crime except 
upon an indictment by a grand jury, cases which arise in the land 
and naval forces. It is likewise held that the constitutional right to , 
be confronted by witnesses and to have a speedy public trial have 
relation to prosecutions before civil courts of criminal jurisdiction 
of the United States, and do not apply to military courts. While 
we have extended by legislation many of these constitutional rights 
to an accused before a military court, this right to peremptory chal¬ 
lenge has not been recognized, and I am inclined to think that its 1 
introduction would be fraught with grave consequences. I do not 
believe that there has ever been any complaint that our military 
jurisprudence did not accord this right. 

The Chairman. General, I think we will have to postpone our 
hearing until next Tuesday. 

Gen." Crowder. I thank you very much. 

Thereupon, at 12 o’clock m., the committee adjourned until Tues¬ 
day. May 21. 1912. at 10 o’clock a. m. 


Committee on Military Affairs, 

Tuesday , May 21, 1912. 

The committee this day met, Hon. James L. Slay den (acting 
chairman) presiding. 

STATEMENT OF BRIG. GEN. ENOCH H. CROWDER, JUDGE ADVO¬ 
CATE GENERAL, UNITED STATES ARMY—Continued. 

Mr. Slayden. General, you may proceed. 

Gen. Crowder. At the prior meeting of the committee we had 
completed the consideration of the articles relating to the composi¬ 
tion, constitution, and jurisdiction of courts-martial and two of the 
articles relating to procedure, finishing with article 18, relating to 
challenges. The articles from 18 to 37 deal with procedure. None 
of the changes is fundamental. They are largely changes of ver¬ 
biage, but some of them are quite important. Following the plan 
adopted at the last session, I will take them up article by article. 

In article 19 the old law is repeated with one omission and one 
addition. The omission is in the oath to be administered to the 
judge advocate, which carried this provision— 

will not disclose or discover the vote or opinion of any particular member of 
the court-martial, unless required to give evidence thereof as a witness of a 
court of justice in due course of law. 

That is article 85 of the old law. That provision has been omitted, 
because under legislation enacted since that article was enacted the 
judge advocate is excluded from the closed sessions of the court and 
has no opportunity to know the vote or the opinion of any member 
of the court-martial which the public does not have. 

Mr. Slayden. And there is no occasion for retaining that provi¬ 
sion? 




REVISION OF THE ARTICLES OF WAR. 


33 


Gen. Crowder. No. The other change is at the close of the article 
on page 9. The sentence, “In case of affirmation the closing sentence 
of adjuration will be omitted,” has been added. That explains itself. 

Mr. Sweet. What provision is there now for a speedy trial? 

Gen. Crowder. We shall come to that in articles 68 and 69 of the 
revision. 

Mr. Kahn. There is also another change, the word “ findings.” 

Gen. Crowder. Tes, sir; and I was about to explain that. The 
word “ findings ” does not appear in the existing article prescribing 
the oath for the judge advocate. His oath is “not to disclose or dis¬ 
cover the vote or opinion,” and makes no reference to the findings. 
It will be at once apparent to the committee that in the case where 
the law imposes a mandatory sentence, to disclose the findings is to 
disclose the sentence, and in other cases to disclose the findings is to 
give very definite suggestion as to the sentence imposed. It is a 
defect of the existing law not to include the word “findings” along 
with the words “ vote or opinion ” in the prescribed oath. 

Article 20 deals with the subject of continuances and repeats the 
provision of the existing law (art. 93), but with the words “that if 
the prisoner be in close confinement the trial shall not be delayed for 
a period longer than 60 days,” omitted. The omitted language is 
transferred to new article 69. 

Mr. Kaiin. It is not omitted? 

Gen. Crowder. No, sir; except that that particular language is 
omitted and new language inserted. 

In article 21 the word “ accused ” is substituted for the word 
“ prisoner ”—a mere verbal change. 

Article 22 deals with process to obtain witnesses. It is based upon 
section 1202, Revised Statutes, which was enacted in 1863. That sec¬ 
tion was in the nature of an article of war, and is properly trans¬ 
ferred from the general body of the statutes to the new code. It 
will be noticed that I have extended the process which the present 
law says may be issued by a judge advocate only, to a summary court; 
so that all of our courts will have the power to compel the attendance 
of witnesses. The principal defect of said section 1202 is that it does 
not provide for compelling a witness to testify , although it has pro¬ 
vided for compelling him to attend . Such has been the ruling of the 
Judge Advocate General’s office, and it has been several times ap¬ 
proved by Secretaries of War. The construction was based upon the 
principle that punishment of a witness as for contempt for refusing 
to testify is a summary proceeding, not a process, and therefore not 
within the provision of the article. I have left the article as it is in 
this regard, in view of legislation enacted subsequently to section 1202 
(act of Mar. 2, 1901, incorporated in sec. 24 of the revision), and 
which places process to compel testimony of civilian witnesses before 
courts-martial in the hands of United States district courts. Before 
leaving this article I desire to invite attention to the fact that the 
compulsory process it gives to courts-martial is not available against 
witnesses who reside beyond the State, Territory, or District where 
the military court shall be ordered to sit. This limitation results 
from the fact that the reference of the article is to courts of criminal 
jurisdiction within the State, Territory, or District whose process 
does not run beyond the geographical limits named. It will be noted 
that in the new article we have given them the same process as courts 


46382—12-3 


REVISION OF THE ARTICLES OF WAR. 


34 

of the United States may lawfully issue, and have thus extended the 
field in which process to compel the attendance of witnesses will run. 

Article 23 sets forth the oath of witnesses. It is the same as the old 
law, except in one regard, the words “ in case of affirmation the clos¬ 
ing sentence of adjuration will be omitted,” have been added. 

We now come to article 24, which is taken from the act of March 
2, 1911, already referred to, which act constitutes the response which 
Congress made to the request of the War Department for compul¬ 
sory process to compel civilian witnesses to testify before courts-mar¬ 
tial. The legislation is useful in its present form, but it is submitted 
that its application should be extended. First, the compulsory proc¬ 
ess to compel testimony should be as available in the hands of an 
officer, military or civil, designated to take a deposition to be read 
in evidence, as it is in the hands of a court-martial before whom the 
deposition is to be read. I take it there will be no difference of 
opinion as to that. There has been omitted from the old law the 
language of the first proviso, as follows: 

That this shall not apply to persons residing beyond the State, Territory, or 
District in which such general court-martial is held— 

in other words, the act did not give compulsory process as against 
witnesses residing beyond the State, Territory, or District. It is 
submitted that this is a limitation which ought not to exist. The 
presence of this limitation in our existing Dav is probably due to 
the fact that where a Avitness resides beyond the State, Territory, 
or District there is authority in article 91 of the existing code to 
take depositions. Where the issues to be investigated by a court- 
martial are grave it may be very important, from the standpoint of 
the accused, that he shall be confronted by the witnesses against 
him, and the court-martial should have available, either in its own 
hands or in the hands of the civil court, the necessary process to 
compel personal testimony in such cases. 

Mr. Hughes. It says: 

Provided , That this shall not apply to persons residing beyond the State, 
Territory, or District in which such general courts-martial is held: 

in other words, if he lives beyond that you would take his deposi¬ 
tion ? 

Gen. Croavder. Must take his deposition unless he voluntarily ap¬ 
pears. 

Mr. Hughes. But you could not get him as a Avitness ? 

Gen. Croaader. That is it. 

Mr. Evans. It simply makes it effective, so that the man Avho does 
not obey the subpoena can not get out of it. OtherAvise without 
that, Avhere a man does not obey the subpoena, you Avould have to o- 0 
back for additional authority? 

Gen Croa\ t der. Yes, sir. 

You will notice that the existing article gives the right of com¬ 
pulsory process only against witnesses before a general court-martial, 
and that I have substituted for the words “general court-martial ” 
the word court-martial,” so as to include all three classes of these 
courts. Perhaps a better designation would have been a “military 
court, which would make the article applicable to all courts of 
whatever description, including military commissions and provost 


REVISION OF THE ARTICLES OF WAR. 


35 


courts. If that change is made, which I recommend, then the word 

court-martial appearing in line 24 (p. 10) should be substituted 
by the words “such court,” and further, in line 7 (p. 11), there 
should be substituted for the word “ court-martial ” the words “ mili¬ 
tary court.” 

We come now to article 25, which relates to the admissibility of 
depositions. The existing article (art. 91), which article 25 sub¬ 
stitutes, provides that the depositions of witnesses residing beyond 
the limits of the State, Territory, or District in which any military 
court may be ordered to sit, may be taken upon reasonable notice. 
I have preserved this provision/but have given the authority also 
to take depositions of witnesses residing beyond the 100-mile limit, 
following in this regard the Federal statute respecting the taking 
of depositions—that is, 100 miles from the place of hearing. It 
will be noted also that the authority to take depositions is granted 
where the witness is about to go beyond the State, Territory, or Dis¬ 
trict, or beyond said 100-mile limit, or when by reason of age, sick¬ 
ness, bodily infirmity, imprisonment, or other reasonable cause he 
is unable to appear and testify in person at the place of trial or hear¬ 
ing. It will be noted further that the application of the old article 
has been broadened to include military commissions, courts of in¬ 
quiry, and military boards. 

Mr. Sweet. Please explain what you mean by military commis¬ 
sion. 

Gen. Crowder. That is our common law of war court, and was re¬ 
ferred to by me in a prior hearing. Thi& war court came into ex¬ 
istence during the Mexican War, and was created by orders of Gen. 
Scott. It had jurisdiction to try all cases usually cognizable in time 
of peace by civil courts. Gen. Scott created another war court, called 
the “council of war,” with jurisdiction to try offenses against the 
laws of war. The constitution, composition, and jurisdiction of 
these courts have never been regulated by statute. The council of 
war did not survive the Mexican War period, since which its jurisdic¬ 
tion has been taken over by the military commission. The military 
commission received express recognition in the reconstruction acts, 
and its jurisdiction has been affirmed and supported by all our 
courts. It was extensively employed during the Civil War period 
and also during the Spanish-American War. It is highly desirable 
that this important war court should be continued to be governed as 
heretofore bv the laws of war rather than by statute. 

Mr. Sweet. There is more elasticity, I suppose? 

Gen. Crowder. Yes, sir: and the lack of statutory recognition has 
not prevented the Supreme Court from supporting the jurisdiction 
of the military commission in the trial of the gravest cases, and 
supporting it in the most explicit language. It is a most important 
institution in time of war. 

Article 26 specifies the persons before whom depositions may be 
taken. The existing law contains no provision of this character, and 
we have followed, by analogy, the provisions of the civil law. 

Mr. Slayden. You provide “any officer, military or civil”? 

Gen. Crowder. Yes. sir: any such officer authorized by the laws 
of the United States or by the laws of the place where the deposition 
is taken to administer oaths. 

Article 27 deals with courts of inquiry. There is no substantial 
change from the old law (art. 121). The word “proceedings” has 


36 


REVISION OF THE ARTICLES OF WAR. 


been substituted by the word u record, for of course it is the record 
of the proceedings which would be offered in evidence. 

Mr. Slayden. What is a court of inquiry ? 

Gen. Crowder. It is a court of inquest to examine into the nature 
of allegations made against any officer or soldier, and to report find¬ 
ings of fact, and express an opinion when expressly invited to do so. 

Mr. Slayden. Before a court-martial is convened? 

Gen. Crowder. Before the court is convened, and generally to de¬ 
termine the necessity for a court. 

Mr. Slayden. A grand-jury proceeding? 

Gen. Crowder. Yes, sir; of that general nature. 

Mr. Hughes. That is the present law? 

Gen. Croavder. Yes, sir; there is no change. 

Mr. Slayden. Do they frame an indictment? 

Gen. Croavder. They do not frame an indictment; they submit the 
facts to the reviewing authority. 

Mr. Hughes. They occupy the position of a grand jury in a civil 
court ? 

Gen. Croaat>er. Yes, sir. 

Article 28 simply repeats a provision of the old law, article 49, 
except that I have omitted the penal part of the old article, because 
desertion is punished elseAvhere. This is simply a rule of eA T idence. 

Mr. Slayden. There is a laAv Avhich prescribes the penalty for 
desertion ? 

Gen. Crowder. Yes, sir. 

Article 29, like article 28, is substantially a rule of evidence and 
substitutes that part of existing article 50 which is in its character 
administratWe. The punitive part of said article 50 is transferred 
to the penal provisions of this revision, viz, to article 59 of the 
reA T ision. The underscored language of neAv article 29 sIioavs that 
the existing law has been considerably broadened. The existing 
laAv took cognizance of abandonments of one organization of the 
Army and enlistment in another, while the new article covers not 
only the abandonment of an organization of the Army, but en¬ 
gaging for service in any other branch of the Army, or militia 
Avhen in the service of the United States, or the NaA r y or Marine 
Corps of the United States, and lays down the rule that the offender 
shall be deemed to haA^e fraudulently enlisted in the neAv organiza¬ 
tion in which he fraudulently enlists. There can be no difference of 
opinion. 1 think, about the necessity of expanding the article in 
this regard. 

Mr. Saveet. Is there any means provided for the private soldier 
to know these provisions of laAv? 

Gen. Croavder. You will find that provision is made in this regard 
in the existing aricles and also in the neAv code, the existing re¬ 
quirement being that officers are required to read over the articles 
to enlisted men upon enlistment or within a reasonable period 
thereafter, and at periods of six months during their service. 
Under the terms of the new article (art, 110) this requirement has 
been someAvhat abridged. There is obviously little necessity for 
the reading over to soldiers of technical articles relating to the 
composition, constitution, and jurisdiction of courts, AAdiile there 
is an urgent necessity for not only reading over, but explaining, the 
punitive articles, and the requirement has been stated in that form. 



REVISION OF THE ARTICLES OF WAR. 


37 


Mr. Hughes. They are very forcibly set forth by the officers? 

Gen. Crowder. \ es, sir; and I think the requirement that they 
shall be both read over and explained is a very useful provision of 
the new law. 

Article 30 is a new article and prescribes the form of oath for 
reporters and interpreters. There has never been one prescribed 
before. I think there is a grammatical error. The word “you” 
should be “ I ”, in the form in which the oath is stated. 

Mr. Slayden. It should read “I swear”? 

Gen. Crowder. Yes, sir; that should go in. 

We now come to article 31, which deals with closed sessions of 
the court. Until 1892 the prosecuting officer sat with the court in 
its closed sessions and it was always recognized as placing the 
Government in an unduly favorable relation to the case; that the 
man who was prosecuting sat there and deliberated with the court. 
In the year 1892 Congress passed legislation excluding the judge 
advocate from the closed sessions of the court when the vote was 
being taken or the court was deliberating on its findings. I have 
excluded also the assistant judge advocate, who must also retire 
along with the judge advocate. That is the only new provision. 

Article 32, order of voting, has already been called to your at¬ 
tention. 

Article 33 deals with contempts. There is no substantial change, 
for while it embraces archaic language (its origin was in the code of 
James I), it is effective in its present form. It will be noted that 
the power of a court-martial to punish for contempt is limited to 
acts of disorder committed in its presence or elsewhere which dis¬ 
turb its proceedings. It does not extend to punishing a witness for 
contempt for refusing to testify, alone. 

Article 34 relates to the records of general courts-martial. This 
is a new article. It is nowhere expressly provided in the existing 
code that a general court-martial shall keep a record, but the articles 
do refer to approving, forwarding, and preserving records of a 
general court-martial, and therefore evidently contemplate that a 
record shall be kept. % As a general court-martial is a court of gen¬ 
eral jurisdiction and tries crimes of the gravest character, it would 
seem to be important that there should be express provision of 
statute on the subject of the record to be kept. This matter has 
heretofore been governed by Army Regulations. 

Article 35 makes a similar provision respecting special and sum¬ 
mary courts-martial, preserving the language of the old law relating 
to summary courts, which you will find opposite article 35. 

Mr. Slayden. This is a provision that there shall be a record kept 
of the proceedings of every court-martial, big and little? 

Gen. Crowder. Yes, sir. 

Mr. Hughes. How has it been done in the past? 

Gen. Crowder. It has been done by regulation. It seemed to me 
a matter of sufficient importance to make a statutory provision 
for it. 

Article 36 simply provides for the disposition of the records. 
You will notice in the old article 113 that the judge advocate was 
required to forward, with such expedition as the opportunity of 
time and distance of place may admit, the original proceedings and 
sentence of the court to the Judge Advocate General of the Army. 


38 


REVISION OF THE ARTICLES OF WAR. 


That regulation has never been complied with because the judge 
advocate of the court has to send the record to the reviewing au¬ 
thority for his action. 

Mr. Slayden. He is commanded by statute to do something that 
he can not do? 

Gen. Crowder. Yes, sir: the new article requires him to forward 
the record to the appointing authority, and “ all records of such pro- , 
ceedings shall, after having been finally acted upon, be transmitted | 
to the Judge Advocate General of the Army.” 

As to the disposition of records of special and summary courts- i 
martial, under the existing law, which you will find in the column 
opposite, such records are required to be retained for two years. I 
changed that to three years, which is the length of the enlistment 
period. If the enlistment period is to be changed this article should 
be changed again. 

Mr. Slayden. Two or three or four years? 

Gen. Croavder. Yes, sir. 

Mr. Evans. It seems to me much wiser to have a rule for keeping 1 
your records than to let it depend upon the circumstances. 

Gen. Croavder. Most of the questions Avhich can arise respecting a 
trial occur Avithin the enlistment period. 

Mr. Slayden. Would there be any embarrassment if it Avere ex¬ 
tended to five years? 

Gen. Croavder. No, sir; no serious embarrassment. What I am con¬ 
cerned about is to have it survh r e the enlistment period, because 
questions may arise Avhich would make it necessary to refer to the 
record. 

Mr. Sweet. Could you not obviate the necessity for a change by 
putting it just exactly as you state it noAV, but instead of fixing the 
number of years, say “ for the enlistment period of the person tried?” 
Then it Avould apply to any case and Avould not be subject to change. 

Gen. Crowder. I am perfectly Avilling to have that change made. 

Mr. Slaat>en. There is pending before this committee a bill intro¬ 
duced by Mr. Tilson, providing for a six-year enlistment period- 
three years in active service and three years in the reserve. Even five 
years Avould not cover that. 

Gen. Croavder. No, sir. You will notice that this article relates 
only to the records of special and summary courts-martial. The rec¬ 
ords of the general courts are never destroyed. The records of 
inferior courts are of minor importance; they concern only offenses 
against the discipline of the Armv, and, really, the necessity is not 
urgent to retain them after the enlistment period. 

Mr. Slayden. What courts try desertions? 

Gen. Croavder. The general courts. 

Mr. Slayden. Exclusively ? 

Gen. Crowder. Yes, sir. 

Mr. Slayden. All serious military offenses are tried by the gen- 
eral courts? 

Gen. Croaa t der. Yes, sir. 

I come now to two articles Avhich I think will claim the special 
attention of the committee. They are neAv. Article 38 deals Avith 
rules to be prescribed by the President regulating the mode of proof 
and procedure of courts-martial. I have followed section 862 of the 
Revised Statutes in drafting that article Avhich provides that, “the 



REVISION OF THE ARTICLES OF WAR. 


39 


mode of proof in causes of equity and of admiralty and maritime 
jurisdiction shall be according to rules now or hereafter prescribed 
bv the Supreme Court, except asj herein specially provided.” The 
President is our supreme court in trials by courts-martial, and I 
have undertaken to paraphrase that and give him the corresponding 
power in respect of courts-martial. 

Mr. P vans. With regard to that section I have come to the con¬ 
clusion that there is an opportunity for construction which ought 
not be left in a law if we can avoid it. u Mode of proof,” what is 
that? 11 is the introduction of proof. It is the mode of offering the 
proof. That comes under “ procedure.” I believe it would be 
simpler, clearer, and more direct to u prescribe the procedure in cases 
before courts-martial,” etc., and quit there. u Mode of proof” seems 
to me to be covered by the word “ procedure.” 

Gen. Crowder. I think in that event we should get rid of one con¬ 
struction only to be faced by the necessity of another, viz, whether 
or not “ procedure ” would include mode of proof. The use that I 
intended to make of this article was to prescribe how documents 
should be proved and of what a court-martial should take judicial 
cognizance. Officers rarely have with them books which they can 
consult, and I do not want them left in the dark with respect to 
matters of that kind. Most of us have to look up the books on evi¬ 
dence to determine how to prove a document or of what a court may 
taIce judicial cognizance. 

Mr. Slayden. Would you not have a small book or publication of 
some kind for the guidance of the courts? 

Gen. Crowder. We have what we call the manual. We are going 
just as far as we can in this regard without trespassing upon the func¬ 
tions of Congress. In establishing these rules I have always been 
afraid that we might go too far. I thought we could go as far in 
that direction as Congress had already gone in developing similar 
authority upon the Supreme Court in equity cases and in admiralty 
and maritime jurisdiction. 

Mr. Evans. The rules for the procedure do not go to the merits; 
it is more the matter of practice. The words, “ mode of proof,” do 
' not appear to have been used before. It is not a common expression 
in the law of evidence? 

Gen. Crowder. No, sir. 

Mr. Evans. It is not one of the definite, technical, and adjudicated 
meanings. Has it any military law meaning? 

Gen. Crowder. No, sir. I am introducing it in the code for the 
first time, and have taken it from the statutes, as I have said. It 
never has had any expression in the Articles of War before. Green- 
leaf says that courts-martial are bound in general by the rules of evi¬ 
dence administered in criminal cases in the courts of common law, 
and that this rule is subject to such exceptions as are of necessity 
created by the nature of the service. It thus appears that this most 
distinguished authority on evidence recognizes that there are ex¬ 
ceptions to these rules of evidence in the military jurisdiction be¬ 
cause of the nature of the service. If the President could have the 
sanction of this statute in promulgating rules which would indicate 
to the court what departure from the technical rules which govern 
in civil courts it would, I think, serve a very useful purpose. 






40 


REVISION OF THE ARTICLES OF WAR. 


Mr. Evans. We are following in the military courts the law as laid 
down in the civil jurisdiction touching similar matters. That is, 
the weight of the evidence? 

Gen. Crowder. That is, the quantum of the evidence. 

Mr. Evans. Yes, sir. Have we power in Congress to delegate that 
to the President ? 

Gen. Crowder. No; I think not. I propose only that the manner 
of proof shall be regulated. 

Mr. Evans. Off hand. I think not; but we have ample authority 
as adjudicated by the Supreme Court of the United States to dele¬ 
gate to anybody the right to make rules of practice to arrive at 
justice. 

Thereupon the committee adjourned to meet to-morrow, Wednes¬ 
day. May 22, 1912, at 10 o’clock a.m. 


Committee on Military Affairs, 

Wednesday, May 22, JO 12. 

The committee this day met, Hon. James L. Slayden (acting 
chairman) presiding. 

STATEMENT OF BRIG. GEN. ENOCH H. CROWDER, JUDGE ADVO¬ 
CATE GENERAL UNITED STATES ARMY—Continued. 

Mr. Slayden. General, you may proceed. 

Gen. Crowder. I would like to call attention to the comments 
made by the former Secretary of War, Mr. Dickinson, who has exam¬ 
ined this project of revision. In article 24, page 11, in regard to the 
compulsory process against civilian witnesses before courts-martial, 
in line 5, after the words “United States,” he suggests an amend¬ 
ment. He calls attention to a very pertinent fact, that there are 
some places where the Army is stationed where there are no United 
States district courts and the article fails to provide a remedy. For 
instance, in the Philippines. We have a United States district court 
in Porto Rico. I have sought to convert his idea into language, and 
I suggest that after the words “United States,” in the fifth line, 
that there be inserted the language, “ or in the court of competent 
criminal jurisdiction in any of the Territorial possessions of the 
United States.” 

Mr. Slayden, Would it not be better to say “ a ”? 

Gen. Crowder. There will always be a court that will be referred 
to. I think “ the court ” indicates what was in the minds- 

Mr. Slayden (interposing). It will then read: 

Every person not belonging to tlie Army of the United States who, being 
duly subpoenaed to appear as a witness before a court-martial, or before an 
officer, military or civil, designated to take a deposition to be read in evidence 
before a court-martial, willfully neglects or refuses to appear or refuses to 
qualify as a witness or to testify or produce documentary evidence which such 
person may have been legally subpoenaed to produce, shall be deemed guilty of 
a misdemeanor, for which such person shall be punished on information in'the 
District Court of the United States or in the court of competent criminal 
jurisdiction in any of the Territorial possessions of the United States. 

Gen. Crowder. That would necessitate a further change in line 7— 

And it shall be the duty of the United States district attorney, or the officer 
prosecuting for the Government in any court of competent criminal jurisdic- 






REVISION OF THE ARTICLES OF WAR. 


41 


tion in any of the Territorial possessions of the United States, on the certifi¬ 
cation of the facts to him by the court-martial, etc. 

He also suggests that in line 3, at the top of the page, the word 
u misdemeanor ” should be changed to “ contempt.” I am inclined 
to think that is a very good suggestion. What we are punishing 
for is contempt, and why the Congress originally made it a misde¬ 
meanor rather than a contempt 1 do not know. The history of the 
legislation is a little bit obscure. 

Mr. Slayden. The courts have such exclusive, unrestrained juris- 
i diction that there must be some reason to change it from “ misde¬ 
meanor ” to “ contempt.” Is it effective. 

Gen. Crowder. It is effective in its present form. It is simply a 
criticism of the verbiage rather than the idea. What you want is 
compulsory process, and you are getting that from a civil court 
as the law now stands. 

Mr. Dickinson seems to have given this article a great deal of at¬ 
tention. After the word u Provided ,” in line 11, he wants language 
introduced like this: “That imprisonment may be continued until 
the witness shall answer such questions as he is bound to answer or 
shall produce the documentary evidence which the court shall de¬ 
termine he should produce.” In other words, he wants not only the 
six months’ limit, but he wants it to continue as long thereafter as 
the witness is in this noncompliant attitude toward the court. I 
have hesitated to recommend to the committee that they strengthen 
this statute in this way because of the history of this legislation. 
Congress refused for a great many years to give the court-martial 
authority to punish a civilian witness for contempt. Finally and 
by the legislation here in reference it gave this power to the United 
States district court. I suppose Congress went as far as they 
thought they should go in the old statute, and I thought that I 
would not draw criticism upon the articles by trying to strengthen 
this provision, although I realize that this power that Mr. Dickinson 
would put in the statute might in rare instances be a useful power. 

Mr. Slayden. Practically, would you need it? 

Gen. Crowder. No, sir. 

Mr. Slayden. Is not the six months’ punishment sufficient? 

Gen. Crowder. I think so. If the witness refuses to testify, he 
may be brought again before the court-martial, and if he again 
refuses may be again committed; and we may continue in this 
police' until the civil court says stop. 

In article 26. the next page, in line 7. page 12—this authorizes, 
you remember, depositions to be considered in noncapital cases— 
Mr. Dickinson says add after the word “hearing” the words: 

Provided, That such testimony may be adduced for the defense in capital 
cases; 

and he adds— 

it is in some States permitted to the defense to take depositions in criminal 
cases, although the accused must be confronted by witnesses for the prosecution. 

Mr. Slayden. If he demands it? 

Gen. Crowder. If he demands it. It would extend this authority 
to the defense, when he is on trial for his life, to take evidence by 
deposition. There is no doubt about your authority to do so, but 
we rarely try capital cases, except in time of war. 





42 


REVISION OF THE ARTICLES OF WAR. 


Mr. Slayden. I think it would appeal to some people. 

Gen. Crowder. I think so. Of course, the prosecution is denied 
the right. 

Mr. Hughes. Why is not that a wise provision? 

Gen. Crowder. I think it secures additional guarantees for an ac¬ 
cused person, and on that line it would be popular legislation. It is 
desirable legislation. It can not result in any detriment to the 
Government. 

Mr. Pepper. Would there be any danger from the Government hav¬ 
ing to combat the depositions, that they would have no chance to 
dispute them ? 

Gen. Crowder. No. I think the burden is not an unreasonable one 
to impose upon the Government to meet. 

Mr. Pepper. The Government would have notice? 

Gen. Crowder. Yes, sir. “Provided, That such testimony may be 
adduced for the defense in capital cases.” “ Such testimony ” means 
testimony by deposition taken on reasonable notice. Mr. Dickinson 
went over the articles very carefully, and he has commended the 
revision, with a few amendments whiqh occurred to him. 

That is all I have to call attention to until we get to article 88, on 
page 15, “ President may prescribe rules”; where, on yesterday, in 
our hearing the discussion turned upon the use of the language 
“ mode of proof,” and I think it was Mr. Evans who suggested that 
we might be going too far in such a grant of power to the Presi¬ 
dent and spoke particularly of what the language conveyed to his 
mind. “Mode of proof,” he said, if it referred to the quantum 
of evidence, he would object to it, but if it referred simply to the 
mode of presenting proof, then he had no objection to make. 

Mr. Sweet. I think you rather erroneously referred to quantum. 

Gen. Crowder. I meant to say that the new article did not. I 
have some alternative language to suggest this morning. Let the 
article read “ The President may, by regulations which he may 
modify from time to time, prescribe the procedure, including mode 
of proof.” This to show that it is something within procedure, and 
then we ought not to have any question that we are dealing with the 
form of proof and not with weight of evidence. Then strike out 
“ and their procedure ” in the twenty-fifth line. 

Mr. Sweet. That applies more particularly to documentary evi¬ 
dence? 

Gen Crowder. ^ es, sir; in the matter of introducing docu¬ 
mentary evidence officers of the Army are rarely sufficiently familiar 
with the rules, and we want an opportunity to promulgate definite 
rules so that the judge advocate trying a case or the counsel for the 
defense will know just what formalities to comply with in order 
to get a document before the court. The rules to be promulgated 
will cover mainly military record evidence. 

Mr. Slayden. I suppose if you get this revision that you or 
some one will immediately reduce to a manual of some sort the pro¬ 
cedure, etc., under these articles for the guidance of the officers? 

Gen. Crowder. That will be accomplished bv a revision of the 
present manual of procedure. It will not require very much revision 
to adapt it to the requirements of these statutes; it will require some 
amplification. 

Mr. Slayden. The less revision you have, the better. 



REVISION OF THE ARTICLES OF WAR. 


43 


(xen. Crowder. If Congress enacts this revision the service will 
not be cognizant of any material changes in the procedure, and courts 
will function much the same as heretofore. 

Mr. Sweet. It will be legalized? 

(Ten. Crowder. The revision will make certain a great deal that 
has been read into the existing code by construction. The utility 
of the present code depends to a very material degree upon what 
has been read into it by construction in the last 100 years. 

Mr. Pepper. There has been not recent revision? 

Gen. Crowder. No, sir. There was been some piecemeal revision, 
but no comprehensive revision since 1800. 

1 he next article is 39, on page 10. Since that article was prepared 
my attention has been called to pending legislation in the Senate of 
the United States on the same subject which is so much better than 
what I have attempted to give the military courts that I am inclined 
to ask the committee’s attention to it as a substitute for article 39. 
It will be noticed that article 39 is based upon existing section 1025 
of the Revised Statutes, and goes no further in granting immunity 
from error to courts-martial than the Congress of the United States 
has extended to United States courts trying criminal cases; but that 
statute (sec. 1025. Rev. Stat.) is now about to be amended, and ap¬ 
parently the consideration given the new legislation shows substan¬ 
tial unanimity of opinion in its favor. The phraseology of the new' 
law reads like this : 

That no judgment shall he set aside or reversed or new trial granted by any 
court of the United States in any case, civil or criminal, on the ground of mis¬ 
direction of the jury or the improper admission or rejection of evidence, or 
for error as ro any matter of pleading or procedure, unless in the opinion of 
the court to which application is made, after an examination of the entire cause, 
it shall appear that the error complained of has injuriously affected ti e sub¬ 
stantial rights of the party. 

Mr. Slayden. That would remove one of the most serious charges 
against the legal procedure in this country. 

Gen. Crowder. I ask that it be substituted for section 39. The 
next, article 40, is our statute of limitations, and it takes the place of 
article 103 of the existing code, the first paragraph of which was 
article 88 of the code of 1806, which was the only law 7 on the subject 
until 1890, w r hen the second paragraph v'as added. I am calling 
attention here to what is perhaps the most defective article in the 
existing code, and one which has given us the greatest trouble in the 
administration of military justice. I invite particular attention to 
the following manifest defects of the existing article: 

First. The w 7 ord “ mustered ” is used in the last line of the second 
paragraph of the article with reference to a peace offense. Soldiers 
are not mustered into the service in time of peace, but are enlisted; 
but that is simply inappropriate language. 

Second. “ Manifest impediment ” w hich interrupts the running of 
the statute is included in the first paragraph of the article and not 
included in the second, thus establishing a different rule for desertion 
in time of peace than for other offenses. There is, of course, no rea¬ 
son for this difference. 

Third. Article 103 in its first paragraph covers “ any offense,” 
and therefore includes desertion in time of war and murder. By 
rather bold construction we have held that desertion in time of war 
w’as excepted, and that it could be tried, irrespective of the time lim- 






44 


REVISION OF THE ARTICLES OF , WAR. 


itation—a construction which rests upon a very doubtful basis and 
is likely to be upset the first time a man convicted under it has the 
enterprise to go before a civil court and ask for a writ. Murder 
should of course be expressly excepted. 

Fourth. It is not made certain whether absence referred to in the 
first paragraph means absence from the United States; nor is it 
certain whether the period of this absence, or the period of manifest 
impediment is to be excluded in computing the period of limitation. 
That absence is to be so excluded in respect of a desertion in time 
of peace clearly appears in the second paragraph. 

Fifth. Under the first paragraph the period of limitation termi¬ 
nates with the issue of the order for trial as to all offenses except 
desertion in time of peace. Under the second paragraph, which 
deals with the latter offense, it terminates with arraignment. Of 
course no distinction of this character can be justified. 

Sixth. The period of limitation—two years—is too short, espe¬ 
cially for civil crimes. Adequate proof of this is found in a com¬ 
paratively recent trial in the Eastern Division, where an officer was 
charged with embezzlement, which under the Government system of 
accounting was not disclosed for more than two years. 

The new article reads “ Xo person shall be liable to be tried by 
a court-martial for any crime or offense, except desertion committed 
in time of war. or murder.'' 

Mr. Pepper. Except desertion in time of war or murder in time 
of war? 

Gen. Crowder. No; I have placed murder last so that it should 
not be qualified by the phrase “ in time of war." 

Mr. Sweet. What does the word “ committed ” add ? 

Gen. Crowder. I will have something to say as to that term when 
we come to discuss existing article 47. I think I can then make 
plain to you why I have used that term. You will notice that I 
have changed not only the period of limitation from two to three 
years to correspond to the civil statute of the United States, but have 
also provided that the period shall terminate with “the beginning 
of the prosecution of the person for such crime or offense,” and have 
also provided that— 


tlie period of any absence of the accused from the jurisdiction of the United 
States and also any period during which, by reason of some manifest impedi¬ 
ment. the accused may not have been, amenable to military justice, shall be 
excluded in computing the aforesaid period of three years. 

Mr. Sladen. In what sort of circumstances might that be applied? 

Gen. Crowder. According to our construction “manifest im¬ 
pediment exists where an accused person sought to be brought to 
trial is sick, or is detained by the civil authorities or as a prisoner of 
war, etc. 

The concluding provision of the article reads: 


And provided further , That the prosecution shall be held to have be<uu 
when the charges shall have been duly received at the headquarters of"ai 
authority competent to appoint a court-martial for the trial of charges alle ,r im 
the commission of the crime or offense in question. 


In other words, we have adopted the rule of the civil statute, 
which makes the period of limitation terminate with the finding of 
an indictment. When charges are duly preferred and received at 
the headquarters of the authoritv competent to order trial everv 






REVISION OF THE ARTICLES OF WAR. 


45 


administrative step has been taken to bring an accused to justice 
which can be taken in his absence. The formal convening of the 
court or the formal arraignment of the accused can not take place 
in the absence of the accused. 

Mr. Pepper. If he is away and can not be caught, it does not 
affect the case? 

Gen. Crowder. Not if the charges have been preferred. 

AVe come now to consider the second proviso of this article (at the 
bottom of p. 1(>). it reads: 

Provided further. That in case of desertion committed in time of peace, no 
part of the period for which the soldier was enlisted or mastered into the serv¬ 
ice shall he counted as a part of the aforesaid period of three years. 

That is the present law, and it works this way. A soldier deserts 
10 days after he enlists. He is liable to arrest for the period which 
remains of his enlistment, plus the statutory limitation of two years. 
An old soldier deserts in the last part of his enlistment and is liable 
to arrest and trial for a much shorter period; yet his offense is much 
more heinous than is the offense of the man who deserts in the 
recruit stage. 

Mr. Slayden. The other man is less well informed? 

Gen. Crowder. Yes, sir. Col. Winthrop says of this provision 
(AYinthrop's Military Law and Precedents, Vol. I. p. 381). that this 
provision was engrafted upon our military code from the German 
military system, and was designed to extend the period for the prose¬ 
cution of deserters; he then points out how unequal it is in its opera¬ 
tion, and adds: 

It is. in general, of doubtful expediency to introduce into the American mili¬ 
tary practice a rule derived from a foreign code, and especially where such 
rule is based upon a theory hot tenable in our law. The theory upon which this 
rule is founded is that desertion is a “continuing offense”; i. e., is an offense 
which once committed on a certain day continues to be committed anew on every 
successive remaining day of the term of the enlistment of the soldier; so that, 
being committed on the last day of the term equally as upon the original day, 
the limitation should not begin to run till after such last day. Hut this refine¬ 
ment is not deemed to be applicable to desertion in our law. * * * But 

desertion consists in an offense of which the gist is a particular intent and 
one which must be entertained at a particular time, viz, at the moment of the 
nna uthorized departure. 

AATnthrop recommends that this proviso be stricken from our law, 
and I concur in that recommendation. It was inserted in the new 
articles with the intention of asking the committee to strike it out. 

Mr. Pepper. The effect would be that both would be on the same 
basis, and the time of service would have nothing to do with it? 

Gen. Crowder. That is it. 

Mr. Sweet. It extends it one year, anyway? 

Gen. Crowder. Yes. sir. The new article makes the period of limi¬ 
tation three instead of two years. 

Mr. Slayden. In other words, he would not be exempt from prose¬ 
cution until three years after desertion, plus the unexpired portion 
of his enlistment? 

Gen. Crowder. Three years from the date of desertion. 

Air. Kahn. They will both be on a parity if you strike this out ? 

Gen. Crowder. Yes, sir. One man commits an offense in the first 
year of his enlistment, another in the last year; the latter has had two 
or three years of instruction and discipline and knows what deser- 





46 


REVISION OF THE ARTICLES OF WAR. 


tion means. It seems to me that he should not be put in a more favor 
able position than the man who commits an offense without having 
had that length of period of instruction and discipline. \\ e ha\e a 
splendid detection system for deserters, and a majority of our de¬ 
serters are picked up within a short time after deserting—general y 
less than a year. This system was elaborated by Gen. Ainsworth. 
If a man deserts to-dayj approximately 4,000 circulars go to the 
police throughout the country and to the deserter s home, lhese 
circulars carry a photograph and a personal description and an onei 
of a reward. ‘ The circulars are usually posted in the post offices ot 
the country, and the amount of the reward is $50. We spent last year 
approximately $52,000 for rewards for apprehension of deserters. 

The purpose of article 41 is to extend to the military establishment 
by statute the constitutional guaranty against double jeopardy. 
There is no change. 

Article 42, which is existing article 98, is retained without substan¬ 
tial change. It forbids punishment by flogging, or by branding, 
marking, or tattoing on the bod} T . 

Mr. Sweet. Should not that be, or other brutal bodily punishment? 

Mr. Kahn. These were the only punishments inflicted prior to the 
passage of the law? 

Gen. Crowder. They were inflicted to some extent prior to the 
passage of the law, and hence the prohibition. 

Mr. Pepper. Does the mentioning of these offenses by implication 
make lawful other offenses, such as would be called barbarous; would 
there be any ? 

Gen. Crowder. I do not think the enumeration is subject to that 
objection. We are guided by the doctrine of the Constitution that 
cruel and inhuman punishments shall not be inflicted. This is an 
enumeration of particular punishments which were to some extent 
resorted to and which it is desirable to prohibit in the future. 

Article 43 is a substitute for existing article 97, which is defective 
in that it fails to make provision for a case where an accused is tried 
for military crime and civil crime in the same charge, both punishable 
with confinement, and the civil ^crime by penitentiary confinement. 
Let me illustrate. A man is tried and convicted of the military 
offense of desertion and the civil offense of assault with intent to kill. 
The civil offense is punishable by penitentiary confinement under 
existing article 97, but the military offense of desertion is not so 
punishable. Upon conviction the reviewing authority properly des¬ 
ignates a penittentiary as the place of confinement. When the pris¬ 
oner has served out a portion of his confinement he asks to be trans¬ 
ferred to a military prison or guardhouse for the remainder of his 
sentence, in the view that not all the confinement adjudged by the 
court was for the civil offense. The War Department has adopted 
the construction that the ninety-seventh article of war authorizes 
penitentiary confinement, which, being authorized, may be properly 
continued until the entire sentence has been served. * The correct¬ 
ness of this construction has not been before the civil courts. What is 
here desired is to have that construction confirmed by statute, so 
that the entire sentence of confinement in such cases may be excuted 
in the penitentiary. 

Mr. Slayden. That is, to keep him from going to a guardhouse for 
lighter punishment if the penalty was inflicted for both offenses? 



REVISION OF THE ARTICLES OF WAR. 


47 


Gen. Crowder. ^ es, sir. We have been doing- this by construction 
right along—denying them the right to transfer—but I have been 
apprehensive that somebody would sue out a writ of habeas corpus 
and the civil court would say that it was not authorized under the 
strict letter of the statute which permits confinement in a peniten¬ 
tiary only for offenses so punishable by a civil law. I want a defi¬ 
nite rule in the law. I do not want to be taking the risk any longer. 

Mr. Kahn. As a matter of fact, under Gen. Crowder’s statement 
he would not get any more than he is getting now; only under the 
existing law the general fears that some enterprising criminal will 
sue out a writ of habeas corpus and will have an interpretation of 
the present law to allow him to spend the latter part of the sentence 
in the guardhouse. 

Mr. Slayden. The effect of this would be to remove all doubt as to 
the meaning of the law and the prisoner will £et all that he is en¬ 
titled to. 

Mr. Kahn. And it will take the law out of the sphere of contro¬ 
versy. 

Gen. Crowder. As T have already pointed out, I hope the com¬ 
mittee will give us a law sanctioning the meaning we have had to 
read into the old articles by construction alone. That is the real ar¬ 
gument for this project of revision. I want to get off the uncer¬ 
tain ground where we have been for 106 years. 

Article 44 contains a change which illustrates again this point to 
which I have just referred. The old article says: 

No person shall be sentenced to suffer death except by the concurrence of 
two-tliirds of the members of a general court-martial, and in the cases herein 
expressly mentioned. 

For certain offenses the death sentence is made mandatory bv these 
articles, and in the trial of such offenses it is obvious that the articles 
should require the finding of guilty to be by two-thirds vote. In the 
articles as they now stand a majority of the court may find a man 
guilty of an offense for which the death sentence is mandatory, and 
in such a case it is the manifest duty of the court to vote the sentence 
which the law requires it to adjudge. Unless a two-thirds vote to 
convict is required, the prisoner is, in such a case, without any real 
protection. 

Mr. Kahn. Is it not your experience, in examination of the laws 
of the States for the infliction of the death penalty, that the jury 
must bring in a unanimous verdict. 

Gen. Crowder. Yes, sir: but that has never been a characteristic 
of our military law. 

Mr. Kahn. Where a crime which will bring the death penalty with 
it is tried by court-martial, and there is one man on the court who 
has doubt as to the guilt of the accused who refuses to bring in a 
sentence of death, do you not think that the prisoner should be given 
the benefit of that doubt, and that only upon the unanimous finding 
of the court-martial death should be the sentence? 

Mr. Slayden. What wmuld you do? 

Mr. Kahn. They could send him to prison for life. I would not 
inflict the death penalty unless the court was unanimous. 

Gen. Crowder. The committee is here dealing primarily with the 
war jurisdiction of courts-martial. To require a unanimous vote for 



48 


REVISION OF THE ARTICLES OF WAR. 


the infliction of the death penalty in time of war would be going a 
long way, I think, toward impairing the success of the field opera¬ 
tions of an army. If this were a proposition to regulate the trial of 
capital crimes in time of peace, the argument presented by Mr. Kahn 
would have greater force. As to a few military crimes, the death 
sentence is authorized in time of peace, but I have not been able to 
find any instance where a death sentence has been adjudged by a 
court-martial in time of peace. Over and above the court to act 
upon such a sentence is the convening authority, and over and above 
both the court and the convening authority stands the President of 
the United States, whose sanction is necessary in peace before a death 
sentence can be executed. I request that the committee consider very 
carefully the question of introducing into our military jurisprudence 
the principle of the civil law. which requires, in addition to these 
safeguards, a unanimous verdict. 

Mr. Slayden. What is the practice in other countries with respect 
to that? 

Gen. Crowder. The English articles, like our own, require a two- 
thirds vote for death sentence. Their articles, like ours, are defective 
in not requiring a two-thirds vote to support a finding in capital 
cases. Their system is identical with ours on that point. I am not 
informed as to what the continental countries of Europe require. 

Mr. Pepper. It will apply not only to a time of war but to a time 
of peace ? 

Gen. Crowder. The extent to which it will apply in peace will 
come up in connection with article 92 of this revision. I can take 
up the discussion now if necessary. 

Mr. Evans. In time of peace can you try a soldier by court-martial 
and shoot him ? 

Gen. Crowder. There are, as will appear later on as we proceed 
with an examination of the revision, a few military offenses punish¬ 
able by death in time of peace, but the number of such offenses has 
been reduced in the revision. 

Mr. Slayden. Is not murder committed by a soldier on a military 
reservation tried by a civil court ? 

Gen. Crowder. Yes, sir. 

Mr. Pepper. Do you mean that you can not try a case of murder 
occurring on a military reservation in time of peace? 

Gen. Crowder. Not by court-martial. That is reserved for trial 
by a civil court. 

Mr. Pepper. In the district in which the reservation is? 

Gen. Crowder. Yes, sir. 

I am asking you further on in this revision to sanction trial by 
court-martial for murder in time of peace committed by a person 
subject to military la w outside the geographical limits of'the United 
States and the District of Columbia; that is, in our foreign posses¬ 
sions. It is one of the more important provisions of this revision. 

Mr. Pepper. Suppose we pass this temporarily ? 

Gen. Crowder. Yes, sir. 

Article 45 is a revision of article 100 of the old code, and certain 
language has been omitted. The old law required that when a soldier 
was convicted of cowardice or fraud the sentence of the court should 
include publication in the home papers of the accused and in papers 
in and about the camp. I have omitted this requirement. If it is 


REVISION OF THE ARTICLES OF WAR. 


49 


desired that the law should require publication, let it be executed ad¬ 
ministratively. There is no particular reason why the court should 
sentence a man to what the law commands shall be done. That re¬ 
sults by the operation of the statute rather than by a sentence of a 
court-martial. 

Mr. Slayden. Do you not think that that is not rather extraordi¬ 
nary punishment, to humiliate a man’s family ? 

Gen. Crowder. This came down to us unamended from 1806. It 
has the feature you say, which works harshly upon the family, but I 
favor its retention in the code. It is an asset of some value in de¬ 
terring from acts of fraud and particularly of cowardice. 

Mr. Kahn. In those days they did not have the telegraph and 
daily papers and there was no means of disseminating information. 

Mr. Slayden. I do not care anything about punishing the individ¬ 
ual, but this humiliates his family and punishes them also. 

Mr. Kahn. To-day, if any officer were even charged with cow¬ 
ardice or fraud, the press of the country would immediately publish 
it broadcast and it would go to every paper in the land, even before 
he was convicted. 

Mr. Hughes. This makes it mandatory? 

Gen. Crowder. Yes, sir. 

Mr. Slayden. Do you think it desirable to continue it? 

Gen. Crowder. I think it is an asset of considerable value. I like 
to feel that every man who is connected with the Army is warned 
by this law that if his conduct on the line of battle is not up to the 
standard it is going to be published to his own home people. 

Mr. Sweet. The last clause * 4 and after such publication it shall 
be scandalous for an officer to associate with him.'* is that necessary? 

Mr. Slayden. Is that new language? 

Gen. Crowder. That is the old language. 

Mr. Evans. Is that for the effect on the morale of the Army, the 
deterrent effect? 

Gen. Crowder. You make a very strong impression on the mind of 
any one entering the service bv directing his attention to this pro¬ 
vision, that if he misbehaves before the enemy, his home people, the 
people he has grown up with, will be made aware of it. 

Mr. Pepper. Is the code read over to the recruits? 

Gen. Crowder. Under the present statute. You will find that I 
have provided for the reading over only the punitive article of this 
code every six months, omitting the articles relating to the consti¬ 
tution, composition, and jurisdiction of courts-martial and articles 
administrative in character. 

Mr. Kahn. Is a recruit given any opportunity to read over the 
articles in their entirety ? 

Gen. Crowder. Yes, sir; he gets the soldiers’ handbook. 

Mr. Kahn. But special attention, in your judgment, should be 
called to the punitive features? 

Gen. Crowder. Yes, sir. 

Article 46 is a repetition of the old law. Only such changes or 
verbiage have been made as were necessary in transferring legisla¬ 
tion from an appropriation bill to the code. 

Mr. Slayden. What discretions does this give the President ? 

Gen. Crowder. Under the authority of the statutes he fixes the 
maximum punishment and the court can not exceed that limit. That 


46382—12 - 4 






50 


REVISION OF THE ARTICLES OF WAR. 


has been very useful to us. The legislation was only given to us in 
1890. 

Mr. Kahn. In other words, as I understand, the President from 
time to time fixes the limit of punishment for various military 
offenses and then the courts-martial do not go beyond that and in 
their findings they fix the punishment within that limit? 

Gen. Crowder. Yes, sir. 

Gentlemen, there is nothing in articles 47 and 48 which involves 
a substantial change of the old law. You will see that article 47 
is substantially two articles of the old code and article 48 is six 
articles of the old code. It has been found possible, by changing the 
language, to confer powers in a much more explicit way than was 
done in the old law. Please note the language, “ or by the com¬ 
manding general of the territorial department or division.” If the 
committee will follow me to article 105 of the old law it will find 
the language, “ or the commander of the department, as the case may 
be,” and in article 107 of the old law, in the concluding part of that 
article, they will find the words, “ to which the division or brigade 
belongs,” both articles referring to exceptional cases and where the 
President may act finally upon important cases. I have included 
both in the new law. However, there is no change. It is simply a 
rearrangement, such as I ought to call to the attention of the com¬ 
mittee. I have included rape among the offenses where the confirma¬ 
tion of the President is not required in time of war. 

Mr. Slayden. He does not have to approve the finding of the 
court? 

Gen. Crowder. No, sir. In the Philippines there were offenses of 
this character committed, but still we did not execute the death 
penalty in many of those cases. 

Mr. Slayden. You mean rape? 

Gen. Crowder. Yes, sir; committed by our own soldiers. This 
is an offense in respect of which a commanding general in the field 
in time of war can act finally. 

In article 49 I have incorporated new language. It is of consider¬ 
able importance to the military service. I would like to explain 
the necessity for it by calling attention to a case which occurs fre¬ 
quently in the administration of justice. A soldier is tried for an 
offense, the court convicts him and the proceedings come to head¬ 
quarters for approval. They are subjected to review by the com¬ 
manding general. Let us take a case which not infrequently arises. 
The commanding general and his legal adviser think the proof not 
sufficient. Under the present practice the proceedings must be re¬ 
turned to the court, with request for reconsideration of its finding and 
sentence. The court not infrequently adheres. The commanding 
general can not approve a finding which he believes unjust, and there¬ 
fore disapproves, and the soldier escapes punishment. That amounts 
to a miscarriage of justice in a case where all minds are convinced 
there is guilt, and the difference of opinion is only as to the degree 
of guilt. The commanding general will not approve the sentence for 
the graver offense, but would approve a proper sentence for the lesser 
included offense. I can not conceive of any objection to that power 
being granted the commanding general in the most explicit way, 


REVISION OF THE ARTICLES OF WAR. 51 

and I hope very much that the committee may take that view of it, 
because it would save us a lot of time. 

Subdivision b is new and grants to the reviewing authority the 
power to change the sequence in which a sentence as adjudged by the 
court may require the execution of the punishments of dishonorable 
discharge and confinement. Under the present practice a soldier 
sentenced to be dishonorably discharged and to confinement is sen¬ 
tenced to be dishonorably discharged first and serves his confinement 
in the status of a civilian. It is sometimes the case that the review¬ 
ing authority is convinced that the prisoner might mend his conduct 
under discipline. By giving him the power to defer dishonorable 
discharge he could in a meritorious case remit the discharge and re¬ 
store the man to duty with the colors. There is nothing further in 
that article which is new. 

Nor is there anything new in article 50, except in line 9, commencing 
with the last word “ for ” to the word “ held ” in the tenth line. I am 
introducing a new idea into the law, which I can explain briefly. 
You will observe that every officer under the old law authorized to 
order a general court-martial had the power to pardon or mitigate 
any punishment adjudged by it. We have had a very interesting 
case arise in the administration of the Army. Some years ago a 
department commander took the view that the grant of authority to 
him in article 112 was unqualified and that he could execute that 
authority at any time prior to the termination of the sentence; that 
therefore he could follow the man into another command or into the 
military prison or penitentiary and mitigate his sentence. The War 
Department would not, of course, permit that, and ordered him not 
1 to exercise that authority, but the incident was an embarrassing one, 
as the letter of law supported the department commander’s conten¬ 
tion. That is all the change there is in article 50. 

Article 51 is simply a repetition of the old law; there is no substan¬ 
tial change and none is needed. 

We come now to the punitive articles of the revision; in other 
words, the articles which enumerate and punish offenses. 

Article 52 has some new language, taken from the existing Army 
regulations which have governed the Army from the date of enact¬ 
ment of the law, making fraudulent enlistment a military offense in 
1892. You will observe that the language, which is in the right-hand 
column, did not define fraudulent enlistment, and we had consider¬ 
able difficulty in defining the offense. It was finally defined by regu¬ 
lations as follows: 

Any person who shall procure himself to be enlisted in the military service 
of the United States by means of willful misrepresentation or concealment as to 
his qualifications for enlistment shall be punished as a court-martial may direct. 

It has stood the test of 20 years. The offense is now defined by 
statute rather than regulation, which can be changed from day to 
day. 

Mr. Kahn. How severe would this be on a young man who is 
anxious to go into the military service and is but years of 
age and who swears that he is 21 years of age and who makes a 
good soldier and gets along? He has willfully misrepresented his 
age. 





52 


REVISION OF THE ARTICLES OF WAR. 


Gen Crowder. The President has fixed the maximum punishment 
and has said to courts that they shall not punish the offense which you 
have mentioned with a punishment greater than a dishonorable dis¬ 
charge and one year’s imprisonment. 

Mr. Kahn. A young man sometimes becomes dissatisfied with the 
conditions at home, frequently a stepmother or stepfather is respon¬ 
sible, and enlists. He is not of an age which entitles him to enlist. 
It seems to me that the officer who enlists him can generally tell 
whether or not he is of the desired age. 

Gen. Crowder. In most cases of this character he is not even tried, 
and when he is tried they give a short period in the guardhouse and 
start him off anew. 

Mr. Kahn. I would not like to see him given a dishonorable dis¬ 
charge. 

Gen. Crowder. It is the present policy to save to the colors as many 
cases of this kind as possible. 

Article 53, which is the next article, I have considerably changed 
and it ought to be underscored in red. The existing article 3 under¬ 
takes to specify the particular facts which make an enlistment in¬ 
valid ; that is, it covers the case of a minor over 16 years of age with¬ 
out the written consent of his parents or guardian, or any minor under 
the age of 16 years, or any insane or intoxicated person, or any de¬ 
serter, and so on. The enumeration there is not complete. There are 
many other persons whose enlistment is forbidden by law. An article 
containing a partial enumeration is defective, but that is the only way 
to keep it from reaching unusal limits. 

Mr. Kahn. Can you furnish the provisions of law which define 
this? 

Gen. Crowder. These are the ones noted on the margin in red. I 
have also several provisions listed here. The new article does not 
undertake any enumeration, but punishes all enlistments made in 
violation of either law or regulations. 

You will notice that in article 54 there is nothing new. It incor¬ 
porates the punitive part of the act of January 21, 1903, without 
change. 

I have omitted from article 55 the phraseology : 

And shall thereby be disqualified to hold any office or employment in the service 
of the United States. 

Mr. Slayden. Why? 

Gen. Crowder. I do not know that it devolves upon me to object 
to that phrase, but it seems to me that if you are going to sentence 
a man to political disability you should do it by a civil court. 

Mr. Slayden. How do you propose to prevent it? 

Gen. Crowder. There is a sentence “ shall be dismissed from the 
service and suffer such other punishment as a court-martial may 
direct,” which ought to be sufficient. The phrase, “ and shall thereby 
be disabled to hold any office or employment in the service of the 
United States,” I have stricken out, because I do not think it is 
proper for the military courts to sentence people to loss of political 
rights. 

Mr. Evans. It is not. It is simply creating a status, simply giv¬ 
ing notice. 

Gen. Crowder. The law imposes that loss. 


REVISION OF THE ARTICLES OF WAR. 


53 


Mr. Evans. I do not know that it is a good place to put it. 

Gen. Crowder. Then it ought to be found with other articles pun¬ 
ishing frauds as well as in this article. 

Mr. Evans. I have no doubt. 

Gen. Crow t der. Here you have the provision: 

Any officer who takes money or other thing, by way of gratification, on 
mustering any regiment, troop, battery, or company, or on signing muster rolls 
shall be dismissed from the service. 

Why should you single out that particular fraud against the 
Government and impose disqualification. If the provision is to be 
retained, why not have it general? I am willing to insert this lan¬ 
guage in connection with the article on page 18 on publication—I 
should hot object to it: 

When an officer is dismissed from the service for cowardice or fraud he 
shall be thereafter disqualified from holding any office or employment in the 
service of the United States. 

Mr. Evans. I think that is a very wise provision of law. I think 
anybody in the Army ought to know what the consequences are for 
committing frauds on the Government, for the very reason that in 
the Army they have to be trusted, and it is not like civil life. They 
have got to be trusted, and as an Army they make a fine record. 
I believe that is a very valuable thing to put in there. 

Mr. Kahn. I rather agree with Mr. Evans’s statement. 

General, what is the idea of the language here, “ by way of gratifi¬ 
cation ”? 

Gen. Crowder. That is rather archaic language. I have substituted 
“ consideration ” instead of “ gratification.” 

Mr. Kahn. I see you have changed it. 

Mr. Slayden. Would it not be better to say, “ for mustering in a 
regiment ” ? 

Gen. Crowder. I do not think the meaning is at all obscure, Mr. 
Slayden. 

Mr. Kahn. “ Who wrongfully takes money ”? 

Mr. Slayden. That makes it much clearer. 

Gen. Crowder. All right; I have written “wrongfully” in. Per¬ 
haps you have already noticed that I have made an omission. The 
old article says “ upon proof thereof, by two witnesses.” That re¬ 
quirement is not written into our statutes any more. This is the only 
place it occurs in the military code. There is no more reason of 
having it here than in other articles punishing frauds. I have erased 
that. 

There is no change in article 56. 

We now come to article 57 for punishing desertion, to which I have 
already referred. The defects sought to be remedied are in old 
article 47 on the subject of desertion. The intention of the old article 
was undoubtedly to punish desertion committed in time of war dif¬ 
ferently from desertion in time of peace. You will notice that the 
word “ shall ” is misplaced in the second line so as to carry the con¬ 
struction that the article deals only with punishment in time of war. 
There is another defect which is corrected by the insertion of the 
words “ or when under orders for active service when war is immi¬ 
nent.” A war might be imminent and we might send orders to the 
Fifteenth Cavalry at Fort Myer to be ready to march, and a desertion 




54 


REVISION OF THE ARTICLES OF WAR. 


committed after receipt of such an order would be just as harmful 
as one occurring after the war had been declared. I have worked 
those two ideas into the new article. 

Article 58 is the same as the old law, except that I have included 
the offense “knowingly assists another to desert,” which was not 
covered in the old law, and have made the phraseology a little clearer 
as to the peace offense. 

Article 59 is simply a repetition of so much of existing article 50 
as was punitive in character. The administrative part of the latter 
article has been placed elsewhere. 

Mr. Slayden. There is no limit on the punishment of an officer? 

Gen. Crowder. We have the limitation that death sentences can 
not be imposed except when expressly authorized, and that peniten¬ 
tiary confinement can not be imposed except for crimes so punish¬ 
able by the civil law of the place. Then it is competent for the 
President to establish limits of punishment, which may not be 
exceeded in time of peace, in respect of offenses which are punish¬ 
able at the discretion of the court. 

In article 60 I have combined six articles of the existing code into 
one short article. We had these six different articles punishing va¬ 
rious forms of absence, all at the discretion of the court-martial. 
It led to confusion and frequent errors in pleading. There is little 
or no necessity for more than one article. All these six articles 
came down from the Code of 1806 without amendment. 

Mr. Slayden. When does desertion begin ? 

Gen. Crowder. The moment the intent is formed not to return. 
We presume for administrative purposes that that intent is mani¬ 
fested by 10 consecutive days of absence, but the presumption is not 
conclusive. 

Thereupon, the committee adjourned to meet to-morrow, Thurs¬ 
day, May 23, at 10 o’clock a. m. 


The Committee on Military Affairs, 

Thursday , May 23, 1912. 

The committee this day met, Hon. James L. Slayden (acting chair¬ 
man) presiding. 

STATEMENT OF BRIG. GEN. ENOCH H. CROWDER, JUDGE ADVO¬ 
CATE GENERAL, UNITED STATES ARMY—Continued. 

Mr. Slayden. General, you may proceed. 

Gen. Crowder. At the conclusion of the hearing yesterday the 
committee had completed its consideration of article 60. Before 
resuming the discussion of the revision I want to invite attention 
to the fact that the committee has now before it the punitive chap¬ 
ter of the new code. It will be observed that nearly all the articles 
end with the words “ shall suffer such punishment as a court-martial 
may direct.” This is a quality of the military code which I have 
not noted in any civil code which I have examined. The quoted 
phrase standing alone would give unlimited authority to a court- 
martial to assess and grade punishments, but other articles limit its 



REVISION OF THE ARTICLES OF WAR. 


55 


meaning. For example, in article 43 of the revision, which is article 
97 of the existing code, a penitentiary confinement can not be ad¬ 
judged for any offense or act not so punishable by the civil law 
of the place, and under article 44 of the revision, article 96 of the 
existing code, the death sentence may be imposed only when espe¬ 
cially authorized by the articles. There is also a further limitation 
upon the discretion of a court-martial under this power to adjudge 
punishment, to be found in article 46 of the revision, which is taken 
from the act of September 27, 1890, which provides in substance 
that where a punishment for an offense is left to the discretion of 
a court-martial it shall not in time of peace be in excess of the limit 
which the President may prescribe. Under the authority of this 
article the President has issued maximum punishment orders, which 
in effect say to courts-martial that they shall exercise their discre¬ 
tion as to punishment within the limits’ fixed in such orders. I will 
here hand to the members of the committee copies of the most re¬ 
cent maximum order, along with certain amendatory orders which 
have been issued, and which will show in what manner the Presi¬ 
dent has exercised the authority given by the Congress to establish 
limits of punishment. 

Article 61 punishes acts of disrespect toward civil authorities, and 
is intended to be expressive of the principle of the subordination of 
the military authority to the civil. The article reads: 

Any officer who uses contemptuous or disrespectful words against the Presi¬ 
dent, Vice President, the Congress of the United States, the Secretary of War, 
or the chief magistrate or legislature of any State, Territory or other posses¬ 
sion of the United States in which he is quartered, shall be dismissed from the 
service or suffer such other punishment as a court-martial may direct. Any sol¬ 
dier who so offends shall be punished as a court-martial may direct. 

There have been few trials under this article, most of them during 
the Civil War period, for denunciatory language toward the Presi¬ 
dent or his administration. Kecentlv we had the trial under this 
article of a soldier for using disrespectful language toward the Pres¬ 
ident of the United States. So it has not entirely fallen into disuse. 

Mr. Slayden. Assuming that we were considering this language 
on the floor of the House, and a Member reads this Article 61, “ shall 
suffer such other punishment as a court-martial may direct,” and he 
asks us what punishment may be inflicted by a court-martial? 

Gen. Crowder. The discretion lodged in the court-martial by this 
article is limited only by the provisions I have above cited, namely, 
that the death sentence can not be imposed except where expressly 
authorized, and that a penitentiary sentence may not be adjudged in 
any case unless authorized by the civil law of the place. 

Mr. Slayden. By statute? 

Gen. Crow t der. By statute. Those are the general limitations. The 
further limitation is in the law which I have already referred to. 
under the authority of which the President establishes maximum pun¬ 
ishments for peace offenses punishable under the article at the discre¬ 
tion of a court-martial. The President has not thus far exercised 
this discretion in fixing the maximum punishments in cases of offi¬ 
cers. The present maximum punishment order relates wholly to 
enlisted men. 

Mr. Edmonds. You can not clearly and positively answer that 
question? 




56 


REVISION OF THE ARTICLES OF WAR. 


Gen. Crowder. You may say any punishment except death, or pun¬ 
ishment by confinement other than in a penitentiary, and that it is 
within the power of the President at any time, under the authority 
which he now has, to prescribe a limit of confinement under this arti¬ 
cle which the court shall not exceed. 

Mr. Slayden. Suppose an officer does speak without respect of the 
Vice President or Congress, or the Secretary of War, or any of the 
other people which the paragraph undertakes to protect—he is tried 
by court-martial and convicted. What punishment can they inflict? 

Gen. Crowder. Dismissal, dishonorable discharge, confinement. 

Mr. Slayden. How long? 

Gen. Crowder. At present there is nothing to limit the confine¬ 
ment, because the President has not acted in fixing a maximum pun¬ 
ishment under this article. For fear a wrong impression may be con¬ 
veyed by that answer, I want to say that between April 10, i806, and 
September 27, 1890, there was no limitation upon the discretion of a 
court-martial except in respect of death sentences and sentences of 
penitentiary confinement. Then came the act of September 27, 1890. 

Mr. Slayden. There was a law of September 27, 1890. 

Gen. Crowder. It reads as follows: 

That whenever by any of the Articles of War for the government of the 
Army the punishment on conviction of any military offense is left to the dis¬ 
cretion of the court martial the punishment therefor shall not, in time of peace, 
be in excess of a limit which the President may prescribe. 

In pursuance of this authority herein conferred the President has 
issued a maximum punishment order, which I have already placed 
before you. The order is not as broad as the authority, but he can 
immediately issue an amendment to the order to include any offense 
which may now be omitted. 

Mr. Hughes. In time of peace the death penalty is fixed by the 
civil authorities. 

Gen. Crowder. Yes; by statute law. as I have explained. Another 
article of this code—article 44—provides that the death penalty shall 
not be assessed except where it is expressly authorized. Still another 
article—article 43—prohibits sentences of penitentiary confinement 
except for offenses so punishable by the civil law of the place. The 
matter is further regulated by this maximum punishment order issued 
by the President under the authority of the statute of 1890. 

Mr. Slayden. We seem to be conferring on one man the privilege 
of assessing a penalty of an extraordinary nature, and it seems to me 
that there should be, so to speak, an east and west boundary of pun¬ 
ishment. 

Gen. Crowder. Is it the principle that you speak of, or is it this 
particular article? 

Mr. Evans. It is this particular article; that it does not dis¬ 
tinguish between time of war and time of peace. In time of war I 
can see that it is absolutely essential that our troops should not go 
into a town meeting or a primary and express their opinion dis¬ 
respectfully of their superiors. To allow any such conduct would 
be to destroy the morale of the Army, but in time of peace, it seems 
to me, that is rather drastic, more drastic than the American people 
would approve of. 

Mr. Slayden. For certain offenses a court-martial may fix the 
penalty, but not including capital punishment. Is that right? 


REVISION OF THE ARTICLES OF WAR. 


57 


Gen. Crowder. Yes, sir. 

Mr. Slayden. All offenses that may be punished by death, for ex¬ 
ample, have the penalty fixed by statute? 

Gen. Crowder. That is right? 

Mr. Slayden. Both in times of peace and war? 

Gen. Crowder. Yes, sir. 

Mr. Slayden. In time of war it would be the ascertainment of the 
guilt and the ability to fix capital punishment? 

Gen. Crowder. The law fixes the extreme limit. 

Mr. Slayden. There is another class of offenses in which capital 
punishment is not considered, speaking contemptuously of officers, 
and things of that kind, for which they may be dismissed from the 
Army ? 

Gen. Crowder. Yes, sir. 

Mr. Slayden. And they may be imprisoned? 

Gen. Crowder. Yes, sir. 

Mr. Slayden. Indefinitely? 

Gen. Crowder. Yes, sir, indefinitely; but it is competent for the 
President at any time to exercise the authority he has under the law 
and prescribe limits under this article. 

Mr. Slayden. That might be life imprisonment; and that ap¬ 
proaches capital punishment, it seems to me. 

Gen. Crowder. While I have answered your questions accurately, 
I think that the answers made leave the committee under an errone¬ 
ous impression. It is true that under the code of 1806 there was 
nothing to restrain the discretion of courts-martial in assessing pun¬ 
ishments, except the provision of one of the articles that the death 
penalty could not be adjudged except where it was expressly author¬ 
ized. That was the law down to 1862, when the existing article 
(art. 97) was enacted prescribing that penitentiary confinement 
should not be adjudged bv a court-martial except when it was im¬ 
posed for any offense made punishable by such confinement under 
the laws of the place. There was a good deal of discussion in the 
service and out of it as to the inequality of punishment which re¬ 
sulted. A court sitting at one post would give a severe punishment 
for a given offense, and a court sitting at a near-by post, in trying a 
similar offense, would give a comparatively mild punishment. This 
was the complaint brought against the articles by the service itself. 
The agitation culminated in the legislation of 1890. to which I have 
already referred, and which authorized the President to establish a 
limit of punishment for offenses the punishment of which wasdeft 
by the Articles of War to the discretion of the court-martial. 

Mr. Slayden. And hence these orders? 

Gen. Crowder. Yes, sir. . _ , . , 

Under the authority of the legislation of 1890 the President issued 
these maximum-punishment orders. You happen to be considering 
an article which is not included in these maximum-punishment 
orders, but it should be remembered that it is competent for the Presi¬ 
dent to fix at any time the limit of imprisonment that may be ad¬ 
judged bv a court-martial under the authority of this article. Ihe 
fact that he has not done so is probably due to the circumstance that a 
case rarely arises under the article. 

I may say further that since the enactment of 1890 and the issue 
of maximum-punishment orders there has been little or no com- 






58 


REVISION OF THE ARTICLES OF WAR. 


plaint of abuse of discretion upon the parts of courts-martial in 
assessing and grading punishments. 

Mr. Dent. Can the President change the order so as to apply to 
offenses after committed? 

Gen. Crowder. No, sir. He would be restrained by constitutional 
principles from doing that. This principle of punishing at discre¬ 
tion is old in military codes, and it is preserved in the British code 
to-day. It is what is distinctive of the military code of to-day. I 
think that the service would feel very much handicapped if that dis¬ 
cretion were limited in the way it is in the civil codes. 

Mr. Evans. We might add the words “ but not to exceed dismissal 
from the service.” 

Gen. Crowder. In case of an officer? 

Mr. Evans. Yes, sir. After the word “ direct ” change the period 
to a comma and add “ but not to exceed dismissal from the service.” 

Gen. Crowder. I do not believe any other punishment than dismis¬ 
sal would be given under the authority we have now. A sentence of 
dismissal is an appropriate one for the offense. 

Mr. Evans. It seems to me that is reasonable. You say it never 
would, in fact, let us have it in law. 

Mr. Slayden. What punishment would exceed dismissal from the 
service ? 

Mr. Evans. Putting a man in jail for life. 

Gen. Crowder. It is possible for the court to give a sentence less 
than dismissal. 

Mr. Evans. Or you might make it read, “such other punishment 
short of dismissal as the court-martial may direct.” 

Gen. Crowder. It is to be presumed, I think, that when Congress 
legislated in 1890 respecting maximum punishment it took cognizance 
of the fact that the discretion of courts-martial in assessing and 
grading punishment was limited only in respect of death sentences 
and sentences to confinement in a penitentiary, and considered that 
the authority the} 7 gave to the President to establish limits of punish¬ 
ment for peace offenses would be effective to guard against excessive 
punishments. We may also assume, I think, that the Congress was at 
that time convinced that this power to assess punishment should not 
be restricted in time of war, for the legislation they then enacted 
was to be operative only in time of peace to limit punishment. 

Mr. Evans. That is giving the President power of legislation, 
and it does apply in time of peace; there is no question about that? 

Gen. Crowder. Yes, sir. No authority is given to fix limits in time 
of war. 

Mr. Evans. I do not think we should. That is just why I think 
this section is needed. I think it is not properly drawn. It seems to 
me it should refer entirely to time of peace. 

Gen. Crowder. Would you not punish the offense in time of war? 

Mr. Evans. You have the right in time of war. 

Gen. Crowder. I do not think there is anything more vital in this 
legislation than the preservation of the principle of punishment at 
the discretion of a court-martial, restricted only, as I have stated, 
as to the imposition of death sentences, penitentiary confinement, 
and in time of peace, as the President may prescribe in orders issued 
under the authority of the legislation of 1890. It would be a radical 
departure if that principle should be impaired in this revision. As 


REVISION OF THE ARTICLES OF WAR. 


59 


1 ^ ^ ave it is a principle that characterizes the military 

I as distinguished from the civil code, and characterizes the code 
of England as well as of this country. It is a fact that the British 
| code does not undertake to limit the discretion of courts-martial in 
the assessing of punishment except in a very limited way. I do not 
think the discretion of the court-martial should be further restricted. 

Mr. Slayden. You do not think it would be wise to define the 
i offense and fix the maximum and minimum in the statutes? 

Gen. Crowder. No, sir. 

This is rather interesting in this connection. I am reading from 
Winthrop. 

Mr. Slayden. He is the military writer? 

Gen. Crowder. Yes, sir. 

This article first appears in the code of 1776, where it was provided that an 
officer or soldier who should “ presume to use traitorous or disrespectful words 
against the authority of the United States in Congress assembled— 

The then Government— 

or the legislature of any of the United States in which he may be quartered ”■ 
should be punished in the same manner as prescribed in the present form, 
except that cashiering was made the mandatory in the case of an offi- 

i cer> * * * 

The acts in violation of this article which have formed the subject of military 
trials in the United States have been almost exclusively of a political character. 
The great majority of the cases were those of denunciatory language used in 
regard to the President of his administration during the late War of the 
i Rebellion. 

He cites 10 cases that were tried during the War of the Rebellion 
and then adds: 

No instance has been found of a trial upon a charge of disrespectful words 
; used against Congress alone or the Vice President alone, although in some ex- 
i amples the language complained of has included Congress with the President. 

Only one case in known of an arraignment upon a charge of speaking disre- 
' spectfully of a governor of a State—and in that the accused was acquitted— 
and none of an alleged violation of the article in assailing a State legislature. 

That is the history of the article, and the application it has had in 
the service. I do not suppose there have been 15 trials under it in 
the life of the Republic. 

The next article, 62, is a related article. It treats of disrespect 
toward superior officers, and the only change is from the word “ com¬ 
manding ” in the old article in the left-hand column to the word 
“ superior ” in the new article. I have substituted for the words in 
the existing article “ any officer or soldier ” the w ords “ any person 
subject to military law,” thus broadening the application of the 
article. We have not in practice construed the words “ commanding 
officer” appearing in the existing article very strictly. It has been 
held that any superior who, in the exercise of his command, is au¬ 
thorized to require obedience to his orders is covered by the term. 

Mr. Ames. It does not mean an officer superior to a man who is 
not in his command? 

Gen. Crowder. No, sir. But it is believed that it should, and the 
new article so provides. Both the new article and the existing article 
deal with disrespect, and a superior, whether or not in the line of 
command, is entitled to receive the respect of inferiors. The inser¬ 
tion of the word “ superior ” considerably broadens the application of 
the provision, for, although the term “ commanding officer ” is a com- 




80 


REVISION OF THE ARTICLES OF WAR. 


prehensive one and lias been liberally construed in some respects so 
as to place an inferior in relation to more than one officer who would 
occupy toward him the relation of commanding officer, there have 
still remained many cases where it has been necessary to charge dis¬ 
respect to an officer of higher grade under the sixty-second article of 
war (the general article as to conduct to the prejudice of good order 
and military discipline), thus introducing complications as to plead¬ 
ing and leading to numerous errors in pleading. There can be no 
question, I think, but that the change from “ commanding officer ” to 

superior officer ” is called for. 

This article, like the others, contains the language “ shall be 
punished as a court-martial may direct,” which is a recurring phrase 
that runs through most of our punitive articles. In a few of our 
articles specific penalties are provided. 

Article 63 is one closely related to the sixty-second article of war, 
just discussed. I have inserted the word “ willfully ” to conform to 
the accepted construction of the present article 21, which the new 
article 63 substitutes. That the disobedience covered by the article 
must be of a positive and deliberate character has been uniformly 
held, but the letter of the present article will permit any kind of dis¬ 
obedience to be charged under it. There have been frequent errors in 
actual practice in charging mere neglect in not complying with an 
order, through heedlessness, remissness, or forgetfulness, and the 
effect of charging this character of disobedience under the present 
article 21 has been to invite courts to impose the severe penalty car¬ 
ried by the article. 

Article 64 is new, and is introduced into the code in order to em¬ 
phasize in a separate provision the necessity of obedience to, and 
proper deportment toward, a noncommissioned officer in the execu¬ 
tion of his office. It is believed that the existence of an express 
statutory provision of this character will do much toward elevating 
the character of the noncommissioned officer in our service and in¬ 
creasing the authority and dignity of his office. This is carrying out 
the policy which has been favored by the military authorities for 
some time, namely, to instill into the soldier in the ranks a high re¬ 
spect for his noncommissioned officer. 

Mr. Ames. The difference in this article between noncommissioned 
officer and commissioned officer is that it only becomes disrespect 
when he is in the execution of his office? 

Gen. Crowder. This article respecting noncommissioned officer is 
more directly related to article 63 which deals with disobedience of 
the lawful orders of a superior officer, and in both articles it is re¬ 
quired that an officer should be “ in the execution of his office.” But 
article 62, which treats solely of disrespect toward a superior officer, 
punishes that disrespect whether or not the officer is in the execution 
of his office. 

We come now to the offenses of mutiny and sedition, punished by 
article 65, which is practically the existing article. The provision 
on this subject has been extended in the new article by adopting the 
phraseology “ any person subject to military law ” in substitution 
of the phraseology of the existing article “ any officer or soldier.” 

Mr. Slayden. That means civilian employees?. 

Gen. Crowder. Yes, sir; and all camp followers and persons 
serving with or accompanying the Army in the field; also veteri- 



REVISION OF THE ARTICLES OF WAR. 


61 


narians, pay clerks, and others made subject to the Articles of War 
by express provision of the statute. Mutiny is quite as likely to 
occur among these classes of camp followers, retainers, and per¬ 
sons connected with an army, but not belonging to it, as among 
officers and soldiers, perhaps more likely. There is nothing new in 
the article in subjecting these several classes to the provisions of 
article 65. It is a jurisdiction which has always been exercised. 
When any person joins an army in the field and subjects himself 
by that act to the discipline of the camp he acquires the capacity 
to imperil the safety of the command to the same degree as a man 
under the obligation of an enlistment contract or of a commission. 

Mr. Slayden. I think I remember that the Supreme Court held y 
under certain circumstances, that volunteer officers who were subject 
to court-martial and had punishments assessed against them had ta 
be tried by other volunteer officers. 

Gen. Crowder. That is an express provision of the statute. It 
is article 77 of the existing code, which makes incompetent officers 
of the Regular Army to sit on courts-martial for the trial of officers 
and soldiers of other forces. 

I have not doubt but that the article respecting mutiny and 
sedition should, for the safety of the camp and of our field opera¬ 
tions, where mutiny is most likely to occur, include all persons sub¬ 
ject to military law and, among them, civilian employees serving 
with the Army in the field. 

Mr. Slayden. The question in my mind was whether we had the 
power. Mutiny and sedition are very serious. 

Gen. Crowder. They are among the gravest offenses denounced 
and punished by the military code; that is, are capital offenses* 
although the death sentence is not mandatory; but it is to be remem¬ 
bered in that connection that no sentence of death can be carried 
i into execution in time of peace except upon the approval of the 
President, nor in time of war until it has been confirmed by an 
! authority superior to the convening authority. 

Mr. McKellar. I don’t suppose the President one time in ten 
I thousand overrules the court-martial. It is always done in a time 
i of great public excitement or something of that kind. 

Mr. Slayden. President Lincoln usually reversed the court- 
I martial in the case of the death penalty? 

Gen. Crowder. Yes; that is true. The only new language in 
article 66 is the phrase “ or having reason to believe,” the insertion 
of which would seem to require no explanation. 

Mr. McKellar. That is really more important than the other. 

Gen. Crowder. Yes, sir; and is an omission in the existing articles 
which should be remedied. The failure to include in the existing 
articles such language as is here supplied has made it necessary 
in pleading to resort to the general article (sixty-second) under 
which we punish all crimes not capital and all disorders and neg¬ 
lects which are not specifically mentioned in other articles. 

Articles 67 relates to quarrels, frays, and disorders. There is no 
: substantial change from the existing article 24, which is the com¬ 
mon-law doctrine in regard to affrays. I have substituted for the 
words “ all officers of what condition soever ” the words “ all officers 
and noncommissioned officers,” which is the accepted interpretation 
of the language first quoted; and is, indeed, an interpretation made 



62 


REVISION OF THE ARTICLES OF WAR. 


necessary by the old article in view of the reference to noncom¬ 
missioned officers found in that article in the next to the last line. 
Of course the article has been expanded to include persons subject 
to military law in order to cover quarrels, affrays, and disorders of 
persons who do not answer to the description of the existing article; 
that is, who do not belong to a “ corps, regiment, troop, battery, or 
company.” 

Mr. Slayden. Suppose a noncommisssioned officer finds a com¬ 
missioned officer in a quarrel or affray. Can he order him under 
arrest? 

Gen. Crowder. Yes, sir; that is the express provision of the 
existing article, and that has been its construction at all times. 

The committee thereupon adjourned to meet on Saturday, May 
25, 1912, at 10 o’clock a. m. 


Committee on Military Affairs, 

Saturday, May 25, 1912. 

The committee met at 10 o’clock a. m., Hon. Dudley M. Hughes 
presiding. 

STATEMENT OF BRIG. GEN. ENOCH H. CROWDER, JUDGE 
ADVOCATE GENERAL UNITED STATES ARMY—Continued. 

Mr. Hughes. You may proceed, Gen. Crowder. 

Gen. Crowder. At the close of Thursday’s session the committee 
had completed conclusion of article 67. I will now take up 
article 68, which relates to arrest and confinement of accused persons, 
and first consider in some detail articles 65 and 66 of the existing code, 
which the new article substitutes. 

Mr. Tilson. Have you combined 65 and 66 in article 68 ? 

Gen Crowder. Yes, sir; that is the significance of their being 
printed opposite new article 68. 

Article 68 is a restatement of the existing law, with additions 
necessitated by the fact that the existing law was lacking in com¬ 
prehensiveness and defective in the regards which I will now indicate. 

First. It made confinements to barracks, quarters, or tent a nec¬ 
essary incident of the arrest of an officer for crime. Instances are 
not infrequent where, because of the gravity of the offiense charged, 
it is necessary, in order to guard against escape, to confine an officer 
elsewhere than in his barracks, quarters, or tent—sometimes in a 
guardhouse—and this has been done notwithstanding the restriction 
of the article. 

Second. Under the wording of the article there is doubt whether 
purely military offenses are included within its provisions. 

Third. There is further to be observed that it has come to be the 
practice of the service to exercise discretion as to the necessity for 
arrest when an officer is to be brought to trial, and in many cases 
he is not ordered into arrest. Whether the arrest shall be close 
or open, with extended limits, depends upon circumstances, and the 
practice of the Army follows the analogy of the civil practice of 
enlargement on bail. 





REVISION OF THE ARTICLES OF WAR. 


63 


Illustrating the necessity for discretion in this latter regard and 
, for a departure from the terms of the existing law, we have the 
recent case of an officer tried in Alaska for the embezzlement of 
over $17,000 of funds appropriated by Congress for the improvement 
of roads. Subsequent to the trial of this officer, but before the 
results were promulgated, he was confined, under guard, in a place 
other than his barracks. 

Mr. Hughes. I am surprised that they made the article that way. 

Gen. Crowder. But that is the existing law; and I may further say 
that the mandatory requirement of the existing article that the party 
arrested shall be deprived of his sword is one more honored in the 
breach than in the observance. Discretion has always been exercised 
in this regard. 

The practice is not to subject an officer to arrest or confinement 
where it is not obviously the proper thing to do. You will note in 
the new article there is added after the words “charged with crime ” 
the words “ or with a serious offense,” and that further on in the 
article the necessity is recognized in certain cases for confinement 
other than by arrest. There is to be noted, further, that the existing 
| article makes the sentence of dismissal mandatory in the case of an 
i officer who leaves his confinement before he is set at liberty by his 
j commanding officer. Not all breaches of arrest merit mandatory 
i dismissal, and the court, in whom it is the policy of our articles to 
vest discretion as to assessment of punishment, should be empowered 
to discriminate in this regard. The sentence of dismissal is preserved 
! in the new article, but is there relieved of its mandatory character by 
adding the words “ or suffer such other punishment as a court - 
I martial may direct.” 

New article 69 relates to investigation of and action upon charges, 
j and substitutes articles 70. 71, and 93 of the existing code. It is 
the purpose of the latter articles to extend by statute to accused mili- 
i tary persons the guaranty of a speedy trial, which the Constitution 
I extends in criminal prosecutions by the civil courts of the United 
j States. The defects of these three articles are: First, that they are 
all lacking in penal sanction: second, that the prescribed time limits 
|j are often impossible to observe, and if observed, would in certain 

I grave cases lead to escapes; and third, they were enacted when for¬ 
eign service was not particularly in view, and did not take into con¬ 
sideration delays which under present conditions are inseparable 
from the administration of military justice. In the new article I 
have dispensed with the provision of the existing articles relating to 
j time limits. When I had the privilege of going over these articles 
with the chairman of the committee, Mr. Hay, he expressed the 
opinion that the time limit in respect of the service of charges ought 
to be preserved, and said if the accused were served with charges he 
was willing to trust an expeditious trial thereon to the military au¬ 
thorities, but was of the opinion that the mandatory requirement that 
service of charges should be made within a particular time ought to 
be preserved. Since that conversation I have given some thought 
to an amendment of this article to cover the points raised by the 
chairman, and have decided to offer for the consideration of the com¬ 
mittee a second paragraph of new article 69 to read as follows: 

In every case where a person remains in military custody for more than 10 
days without being served with a copy of the charges upon which he is to be 
tried, or for more than 30 days without being brought before a court-martial 




64 


REVISION OF THE ARTICLES OF WAR. 


for trial, a special report of the necessity for further delay shall be made by 
the officer responsible for preferring charges, or by the officer responsible for 
bringing the accused to trial; and a similar report shall be forwarded every 
10 days thereafter until charges are served, or until such person is brought to . 
trial or relieved from custody. 

Mr. Hughes. That makes really a speedy trial. 

Gen. Crowder. Yes, sir. 

The next article—article TO—carries no change in the existing law, 
which is article 67 of the present code, except to give that article 
what it lacks in the existing code, viz, a penal sanction, which is pro¬ 
vided for in the concluding words of the new article, “Any officer 
or soldier so refusing shall be punished as a court-martial may 
direct.” J 

Article 71 is the existing article 68, without substantial change. 

Mr. Tilson. Why do you substitute “ every commander of a 
guard ” for “ every officer ” ? 

Gen. Crowder. Because under some circumstances the commander 
of the guard will be a noncommissioned officer. It is very often 
the case that the sergeant of the guard will be in command. 

Mr. Hughes. That covers any emergency that may arise? 

Gen. Crowder. Yes, sir. 

Mr. Tilson. Is there any time when an officer may be in charge 
of a prisoner without being a guard? Would you call an officer a 
guard if he is in charge of the prisoner—you say “ commander of 
a guard.” 

Gen. Crowder. I have in mind the normal condition, viz, that the 
prisoner is held in custody of the guard and an officer is in command 
of it. 

Mr. Tilson. Suppose that the prisoner was being sent from one 
place to another? 

Gen. Crowder. Under such conditions of the service this article 
would have no application. An officer who is conveying a prisoner 
across the country would have an order of superior authority for 
such a journey, and would have no duty to perform such as is out¬ 
lined here—to report in writing within 24 hours the name of the 
prisoner, with the charges against him. He would ordinarily have 
no immediate superior to whom he could report. 

Yew article 72 is existing article 69, and no substantial change has 
been made. The latter article provides that an officer who suffers a 
prisoner to escape shall be punished as a court-martial may direct. 

I think it would better express the meaning if the words “ who, 
through neglect or design,” are inserted. The prisoner might escape 
without any dereliction on the part of the officer. 

We now come to new article 73, which is rather an important one. 

It is a substitute for existing article 59 and deals with a situation 
where we come into closest relation with the civil authorities. A 
soldier commits an offense punishable under military law and also 
under the civil law; that is, the jurisdiction in respect of the offense 
is concurrent. Existing article 59 provides that upon a proper de¬ 
mand he shall be turned over to the civil authorities for trial. 

Mr. Hughes. The civil authorities in control ? 

Gen. Crowder. Yes, sir. 

This recognizes the superior right of the civil authorities. I have 
tried to preserve that feature and at the same time remedy certain 





REVISION OF THE ARTICLES OF WAR. 


65 


defects in the existing article, which I will now proceed to enum- 

First. It specifies offenses against persons and property only, leav- 
mg unprovided for offenses against society or the Government. 

Second. It specifies offenses against citizens only, ignoring the 
tact that all persons within the United States, whether citizens or 
not, are entitled to the equal protection of the laws. 

. Thiid. It refers to citizens of any of the United States, leaving 
it quite uncertain as to whether citizens of Territories are included. 

Fourth. It requires that the application for the surrender shall 
be made “by or on behalf of the party injured.” Crimes are no 
longer punished in this way, but on behalf of the public, and the de¬ 
mand should, of course, come from the civil authorities. 

Fifth. The article covers only “ officers and soldiers,” and fails to 
include veterinarians, pay clerks, and others made subject to military 
law. 

All these defects have been remedied in the new article. 

TCe now come to the consideration of the new language introduced 
into the article, to wit: 

Except one who is held by the military authorities to answer for a crime or 
offense punishable under these articles. 

Under the accepted construction of the existing article, it has 
been held that where the jurisdiction of the military authorities has 
attached in respect of a crime committed bv a soldier as to which the 
civil courts have concurrent jurisdiction the surrender need not 
take place under the requirements of the article until the military 
jurisdiction has been exhausted. This is a matter of construction 
under the existing article, and I have deemed it best to make it a 
matter of express provision, and let the military trial proceed unin¬ 
terrupted by the demand. 

Mr. Tilson. If in the progress of that trial the prisoner would 
commit some additional crime, you mean that the trial would go on 
for the same crime and he would not be turned over to the civil au¬ 
thorities for the new crime? 

Gen. Crowder. That is an exceptional case that you have stated. 
It would depend largely upon the gravity of the new crime. The 
comity that prevails between the two jurisdictions has resolved all 
such matters heretofore without complaint upon the part of either, 
so far as my reading informs me. It would be hard to write into 
the law provisions which would govern in every exceptional case. I 
think we can rely upon the fact that in the history of this article 59 
no complaint on the part of the civil authorities that there was any 
lack of cooperation on the part of the military authorities in recog¬ 
nizing their jurisdiction in important cases has occurred. 

Mr. Tilson. But why do you say, “ except one who is held by the 
military authorities to answer for a crime or offense punishable un¬ 
der these articles, is accused of a crime or offense committed within 
the geographical limits of the States of the Union and the District 
of Columbia ”? Why may he not be held by the military authorities 
to answer for a crime which he has committed within the geograph¬ 
ical limits of the United States or the Territories ? 

Gen. Crowder. The new language written into the article provides 
for this case, and, as I have said, it simply expresses the accepted 
construction of the article. Take the case of a soldier on trial for 

46382—12-5 





68 


REVISION OF THE ARTICLES OF WAR. 


mutiny before a court-martial. During the progress of the trial he 
commits another offense, defined and punished by the civil law, of 
which the court-martial could not take jurisdiction. The trial for 
mutiny, which is one of our gravest military offenses, ought not to 
stop and the prisoner be surrendered to the civil jurisdiction. Both 
offenses to be tried in the case taken for example are serious offenses. 
If there was a marked difference between the two offenses and the 
one of greatest gravity was against the civil law, it is probable 
that under the rule of comity, heretofore referred to, the soldier 
would be turned over to the civil authorities. 

Mr. Tilson. Let us get at this a little in detail. u When any per¬ 
son subject to military law,’* etc., “ is accused of a crime or offense com¬ 
mitted within the geographical limits of the States of the Union and 
the District of Columbia and punishable by the laws of the land, the 
commanding officer is required, except in time of war, upon applica¬ 
tion duly made, to use his utmost endeavor to deliver over such ac¬ 
cused person to the civil authorities, or to aid the officers of justice 
in apprehending and securing him, in order that he may be brought 
to trial. Any commanding officer who, upon such application, re¬ 
fuses or willfully neglects, except in time of war, to deliver over 
such accused person to the civil authorities,” etc. If that exception 
was left out that would turn him over to the civil authorities for any 
offense committed within that jurisdiction? 

Gen. Croavder. Yes, sir; except where the military jurisdiction had 
attached. There are two exceptions written in the new article. To 
strike out the latter would leave the law in an imperfect condition. 
It has never been a provision of the code to require soldiers to be 
turned over to the civil authorities in time of Avar. 

Mr. Tilson. Hoav much do you change the laAv ? Don’t you nullify 
it almost completely by the exception ? It looks to me that you are 
excepting the very person that the article was made to cover. 

Gen. Croavder. I think I can clear up that point by reading from 
Winthrop on Military Law, volume 2, page 1081, a passage which will 
explain the significance of the neAv language which I have introduced 
and make it apparent that it is expressive of the accepted construc¬ 
tion of the existing: law: 

AA^bere a civil and a military court have concurrent jurisdiction of an offense 
committed by a military person, the court which is the first to take cognizance 
of the same is entitled to proceed. 

This portion of the text is based upon Sixth Opinions of the 
Attorneys General, page 414. 

Mr. Winthrop continues: 


And although the precedence of the civil jurisdiction is favored in the law 
yet if this jurisdiction does not assert itself until the other has been duly as¬ 
sumed in the case, its exercise may properly be postponed until the other has 
been exhausted. Upon the commission of such an offense, of a serious charac¬ 
ter, the military authorities will in general properly wait a reasonable time 
for the civil authorities to take action; but if. before the latter have initiated 
proceedings under the article, the party is duly brought to trial by court- 
martial for the military offense involved in his act, the commander may and 
ordinarily; will, properly decline to accede to an application for his surrender 
o the civil jurisdiction until at least the military trial has been completed and 
the judgment of the court has been finally acted upon— 


citing in this connection Steiner’s case (6 Opins., 428) and IioAve’s 
case (idem., 513-514). 



REVISION OF THE ARTICLES OF WAR. 


67 


Mr. Tilson. Now, suppose a soldier in a drunken fury strikes an¬ 
other soldier or an officer. That is, under the civil law, a serious 
breach of the peace.- It may become a crime. He may have assaulted 
him sufficiently to have maimed him, so as to make it a serious crime. 
It is also a crime under those articles—striking his superior officer, 
we will say. Now. as I understand it, under this article, after he 
has been placed under arrest, which he naturally would be—then 
under this exception there would be no necessity for turning him 
over to the civil authorities at all. 

Gen. Crowder. He would not be turned over to the civil authorities 
until after his trial by the military authorities is completed. Then 
he would be. That is the effect of the language which I have intro¬ 
duced into the law. That is the construction which has been read 
into the act and which is to be made a matter of express provision. 
If you leave it out we would still be governed by this construction, 
and the execution of the law would remain unchanged. 

Mr. 1 ilson. Suppose the article were left out entirely, what se¬ 
rious detriment would it be? 

Gen. Crowder. I think there would be very much opposition on 
the part of Congress to leaving the article out altogether. It would, 
of course, strengthen the hands of the Army—put it under no obli¬ 
gation to recognize civil jurisdiction in such cases. 

Mr. Tilson. You have made no obligation now. In case the mili¬ 
tary authorities have arrested a man and are holding him for trial, 
you have imposed no obligation upon the military authorities to 
turn him over to the civil authorities. 

Gen. Crowder. The obligation is simply after the completion of 
the military jurisdiction—after the military jurisdiction has been 
exhausted. That is the provision of that article. 

Mr. Tilson. Where does it say that it shall be done after the 
military trial has been finished? 

Gen. Crowder. When the accused person ceases to be held by the 
military authorities he comes under the provision of the article. 
When he is no longer held, then the requirement of the new article 
becomes explicit that he shall be turned over. If I thought it did 
not mean that, I should ask to have the requirement put in such lan¬ 
guage that it could not be mistaken. We could get along in the 
future, as in the past, without the new language, and if there is ob¬ 
jection to it it can be left out. 

Mr. Tilson. I would not want to take it out of the law. T think 
the military ought to be given sufficient power to maintain itself in 
proper circumstances, and I should not wish to see it taken out of 
the law. But my question was whether it will do it clear enough, 
as you have expressed it here, to make it reliable. If, as you say. it 
is in accordance with the construction of the law, it would probably 
cause no confusion at all. 

Gen. Crowder. No confusion at all, I think. 

Now, we come back to the subheading “War offenses,” page 30. 
There is very little change in any of these articles defining war 
crimes and punishments. The only difference between the projected 
and the existing code is that related articles have been brought to¬ 
gether under a subheading entitled “ War offenses.” 

Article 74 is a consolidation of articles 41 and 42. I believe there 
is nothing in particular to call attention to in that article. 






68 


REVISION OF THE ARTICLES OF WAR, 


Mr. Hughes. “Any officer or soldier who misbehaves himself be¬ 
fore the enemy,” etc., shall suffer death. Does it mean that ? [Read¬ 
ing from new article.] 

Gen. Crowder. Suffer death or such other punishment as a court- 
martial may direct. The death penalty is not mandatory. 

Article 75 has some new language. The existing article says, “ any 
garrison, fortress, or post,” and I have added “ camp, guard, or other 
command,” giving the article broader application. In other respects 
the article remains unchanged. 

Article 76, “ Improper use of countersign ”-- 

Mr. Tilson. You simply made that apply to any person subject to 
military law, instead of any person belonging to the Army ? 

Gen. Crowder. Yes. This includes anybody connected with the 
Army who might be given the countersign. We use the counter¬ 
sign in time of war and in time of peace, but the old article does not 
distinguish between war and peace. It seems absurd to impose the 
death penalty for making known a countersign in time of peace. 
You will notice a change has been made there to distinguish between 
war and peace. 

Mr. Tilson. Suppose it was in time of war and this occurred while 
you were going through a course of training of troops ? 

Gen. Crowder. We would expect the court to exercise a wise dis¬ 
cretion, and if it made an error, that the reviewing authority would 
correct it. It is pretty hard to distinguish in the law between the 
line of communications or the base of supplies and the fighting front 
of the Army. 

Mr. Tilson. You think that is sufficiently taken care of by leaving 
it open to “ such other punishment as a courts-martial may direct ” ? 

Gen. Crowder. Yes; I think so. 

Mr. Tilson. Is that a misspelled word ? Do you means “ courts- 
martial ”? 

Gen. Crowder. It should be “ court-martial.” There is a mistake 
in spelling there. 

Article 77, “ Forcing a safeguard.” The only change in that is to 
substitute for “ Whosoever belonging to the armies of the United 
States ” the words “Any person subject to military law.” 

Mr. Hughes. That is better language. 

Gen. Crowder. Yes. The words “ in foreign parts ” are omitted. 

Article 78 deals with captured property. Under the existing ar¬ 
ticle 9 there is no penal section except the general provision “ for 
neglect thereof the commanding officer shall be answerable.” The 
penal sanction has been supplied in the new article by the insertion 
of the words “ any person subject to military law who neglects to 
secure such property or is guilty of wrongful appropriation thereof 
shall be punished as a court-martial may direct,” which substitutes 
the last clause of existing article 9. 

Article 79, “ Dealing in captured property.” This is an attempt to 
make the Articles of War out of section 5313 of the Revised Statutes. 
There is no change except “All persons in the military or naval serv¬ 
ice of the United States ” is changed to “Any person subject to mili¬ 
tary law.” The statute is not repealed and is left in force to cover 
the Navy. 

Mr. Tilson. The statute as it applies to the Army is made an ar¬ 
ticle of war? 


REVISION OF THE ARTICLES OF WAR. 69 

Gen. Crowder. Yes. The same may be said of article 80, “ Intro¬ 
ducing goods into enemy territory.” That is section 5306, Revised 
Statutes, which was in the nature of an article of war and is here 
transferred to the new articles. It was enacted during the Civil War 
and worked satisfactorily during that period, and it also worked 
satisfactorily during the period of the Spanish-American War. 

Mr. Tilson. You think it would be better to make the statute an 
article of war? 

Gen. Crowder. Yes; because the service does not have access to 
the Revised Statutes, as a rule. 

Mr. Tilson. You realize that you are making the Articles of War 
much longer ? 

Gen. Crowder. On the contrary, I have incorporated 9 provisions 
of the Revised Statutes, 21 provisions of the Statutes at Large, and 
have reduced the articles from 129 to 119 and made them shorter. 

Mr. Tilson. You mean that the total length of the Articles of War 
as you have them here will be shorter than they are at present ? 

Gen. Crowder. I think so. 

Article 81, “ Relieving, corresponding with, or aiding the enemy.” 
That is a combination of existing articles 45 and 46 without sub¬ 
stantial change, except that it recognizes the authority of the military 
commission along with the court-martial to try these offenses. If 
you retain the phraseology “ whosoever relieves the enemy,” it sug¬ 
gests the civilian as well as the person in military service, and for 
that reason we bring into this article a recognition of this war court. 
You will find that also in the next article, 82, relating to spies. That 
article 82 is section 1343 of the Revised Statutes incorporated with¬ 
out any change whatever. That statute was passed during the Civil 
War and expressly recognizes'military commissions in the last line, 
which is my justification for recognizing them here and in the pre¬ 
ceding article. It is an offense which can be committed by a civilian 
as well as a person subject to military law, and that makes it neces¬ 
sary to recognize the military commission. 

Mr. Tilson. You think that it is absolutely necessary to maintain 
that punishment, the death penalty ? 

Gen. Crowder. Yes. When you come to interfere with the death 
sentence in time of war you impair efficiency of your field armies. 
I will have more to say on that when we get through with the puni¬ 
tive articles. 

Mr. Hughes. We will adjourn now until 10 o’clock Monday 
morning. 


The Committee on Military Affairs, 

Monday , May 27, 1912. 

The committee this day met, Hon. James L. Slayden (acting chair¬ 
man) presiding. 

STATEMENT OF BRIG. GEN. ENOCH H. CROWDER, JUDGE ADVO¬ 
CATE GENERAL, UNITED STATES ARMY—Continued. 

Mr. Slayden. General, you may proceed. 

Gen. Crowder. Under the subhead “ Miscellaneous crimes and 
offenses,” we have a series of articles which could not be conveniently 
classified under other headings. The first one, article 83, substitutes 



70 REVISION OF THE ARTICLES OF WAR. 

article 15 of the existing code. Article 15 provides that “Any 
officer who, willfully or through neglect, suffers to be lost, spoiled, or 
damaged any military stores belonging to the United States shall 
make good the loss or damage and be dismissed from the service.” 
The sentence is mandatory, irrespective of the value of the property. 
The willful loss of property of the value of 25 cents would come 
within the terms of the article. I have taken away the mandatory 
character of the sentence, preserving the obligation to make good the 
loss or damage. 

Mr. Slav den. That is a reasonable modification? 

Gen. Crowder. Yes, sir. 

Waste or unlawful disposition of military property issued to sol¬ 
ders is covered by new article 84, which is a combination of articles 
16 and 17 of the existing code. I have made no change in it, but I 
desire to ask the committee to make a change. The words “ to him,” 
in the sixth line, ought to be omitted to cover this situation. 

Mr. Slayden. “ Issued to him for use in the military service ” ? 

Gen. Crowder. Only the words “to him.” A soldier leaving the 
service sells his clothing to a comrade who continues in the service. 
The purchaser avoids in this way the necessity of drawing upon his 
clothing allowance and accumulates a credit. The Government is 
just as much interested in protecting that property as any other 
property used in the service. My attention was called to these words 
by some of the criticisms which I have received since these articles 
were first sent out. 

In the next article, article 85, there is an important change. The 
old article provides: 

Any officer who is found drunk on his guard, party, or other duty shall be 
dismissed from the service. 

In the early codes, the Revolutionary War code, that article read: 
“ Guard, party, or other duty under arms.” In the revision of 1806 
the words “under arms” were omitted, which left the phraseology, 
“ guard, party, or other duty.” The construction which the article 
has since received is that the new phraseology covers all descriptions 
of duty, so that the sentence of dismissal for an officer is mandatory, 
no matter how unimportant a duty he was executing at the time he 
was found drunk. 

Mr. Slayden. That is a question where the punishment does not 
fit the crime ? 

Gen. Crowder. I think so. Yet the court is required to give the 
sentence of dismissal in every case. This violates the theory of our 
code, which assigns to courts rather than to reviewing authorities the 
power to assess and grade punishment. Under this mandatory pro¬ 
vision the court has no discretion in the matter at all. I have also 
suggested a change to distinguish between drunkenness in time of 
war and in time of peace, I do not think there can be any question 
about the advisability of these changes. 

In article 86, which relates to the misbehavior of sentinels, there 
is another important change. I would first invite your attention to 
article 39, which the new article substitutes. It says: 

Any sentinel who is found sleeping upon his post, or who leaves it before 
he is regularly relieved, shall suffer death, or such other punishment as a court- 
martial may direct. 


REVISION OF THE ARTICLES OF WAR. 


71 


Mr. Hughes. That is absolutely mandatory ? 

Gen. Crowder. Take the case of a sentinel at Fort Myer who goes 
t° sleep on post. He is within the terms of this article, because it 
does not distinguish between war and peace. It is one of the capital 
offenses. Of course, that is an absurdity in the law. No one would 
think of punishing with death a sentinel found asleep on post at 
one of our peace garrisons, and of course the court never gives the 
death sentence in such a case, but it is permissible to do so, and I 
do not think it should be. There is one other change. It is be¬ 
lieved that a sentinel found drunk on post has offended to the same 
degree as the sentinel found asleep on post, and I have changed the 
new article so as to cover both offenses, and provided that when 
committed in time of war the death penalty may be adjudged, and 
that when committed in time of peace the offender shall suffer any 
punishment except death that a court-martial may direct. 

Mr. Slayden. I see one little difficulty. It seems to me there is 
absolutely no trouble about telling when a person is asleep, but it 
may be a matter of judgment when a man is drunk. 

Gen. Crowder. That is a difficulty we encounter under other ar¬ 
ticles of war punishing drunkenness. I think courts make very few 
errors in their findings in such cases. 

Articles 87 and 88, on the next page, may well be considered to¬ 
gether. They came down to us from the ancient codes, and were use- 
useful in the days when armies were without the trained and efficient 
commissariat of the modern army. It was then the policy to encour¬ 
age the inhabitants to bring in supplies. The articles are not without 
their use to-day. Vendors of victuals, supplies, and edibles still 
visit our camps, garrisons, and forts. I have broadened the pro¬ 
vision of article 18 and have dropped the punishment of mandatory 
dismissal in this article, and also the death penalty of article 56— 
both manifestly inappropriate. Under article 18 any officer who, 
for his private advantage, lays any duty or imposition upon or is 
interested in the sale of products of vendors was punished by manda¬ 
tory dismissal. 

Mr. Evans. Should it not be penal if he does it for anybody’s 
advantage? 

Gen. Crowder. He might do it for the purpose of securing funds 
for the sick, or other laudable purpose. The prohibition is against 
private gain. 

Article 88, you will observe, is a related provision. It comes to us 
from the code of Gustavus Adolphus (1621), and had a place in all 
the early British codes. I have stricken out the words “ foreign 
parts,” and I have omitted the death penalty, which is never an ap¬ 
propriate penalt}^ for the offense of doing violence to a man who 
brings provisions in, unless the violence results in homicide or bodily 
injury, when it can be reached under another article. 

Article 89 is a partial substitute for existing articles 54 and 55. 
It preserves the punitive part of these articles. The administrative 
part is transferred to new article 105, to which I will later call your at¬ 
tention. When our soldiers take the field there are not infrequently 
minor depredations against the property of civilians. Articles 54 
and 55 were intended to remedy that. They direct officers to keep 
order and redress abuses such as maltreating persons or the willful 
destruction of property, and to see that justice was done to anyone 




72 


REVISION OF THE ARTICLES OF WAR. 


whose property had been despoiled to the extent that the offenders 
pay shall go toward reparation. 

Mr. Slayden. Partly? 

Gen. Crowder. Yes, sir. I have made some reference to these ar¬ 
ticles in my opening statement, referring to the presence in them of 
a good deal of archaic language. I have preserved, in new article 
89, the punitive part of articles 54 and 55 in language which I think 
covers very substantially the provisions of the existing law. 

An occasion arose for applying articles 54 and 55 when the Sepa¬ 
rate Brigade was stationed near Galveston, Tex., in the summer of 
1911. Some soldiers undertook to utilize a boat on a near-by lake for 
diving purposes, and they destroyed the boat. The owner of the 
property petitioned under these articles for redress, and proceedings 
to which I will call your attention in discussing new article 105 
were inaugurated for the purpose of fixing the responsibility upon 
the offenders and to reimburse the citizen who had lost his property. 

Articles 90 and 91 are related articles, and are substantially arti¬ 
cles 25, 26, 27, and 28 of the existing code. I can give you a better 
idea of the articles and their purposes by reading a very short ex¬ 
tract from a standard work on military law: 

The twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth articles, 
having a common history and purpose, will he considered together. All codes 
of military discipline subsequent to the introduction of the standing army in 
England have contained provisions calculated to repress, and eventually to 
suppress, the practice of dueling. 

In article 36 of the Prince Rupert code “ reproachful or provoking speeches 
or acts ” are prohibited, as are “ challenges to fight duels,” and it is declared 
to be a military offense for an officer or soldier “ to upbraid another for refus¬ 
ing a challenge.” Dueling is expressly prohibited, and officers commanding 
guards are forbidden to “ suffer either soldiers or officers to go forth to a duel 
or private fight.” Finally, “ in all cases of duels the> seconds shall be taken as 
principals and punished accordingly.” The several requirements of the articles 
of 1874 relating to this subject can be traced without difficulty through the 
King James articles of 1686 to the comprehensive provisions of the Prince 
Rupert code above cited. It is proper to remark, however, that in the Amer¬ 
ican articles, as in the English codes of the eighteenth century, dueling, as such, 
is not expressly prohibited, the provisions respecting challenges, promoters, and 
the like being in the nature of measures of prevention. The British articles in 
respect to this subject underwent considerable modification in 1844. when duel¬ 
ing, as such, was expressly prohibited; as so modified the articles were em¬ 
bodied in the permanent Army discipline act of 1881. 

In new article 90 we have the existing article 25 substantially with¬ 
out change, except that its provisions are extended to persons subject 
to military law. 

I have attempted to draw within the provisions of the new article 
91 all the substantial provisions of articles 26, 27, and 28. I want to 
say that since preparing this article my attention has been called 
to the corresponding article of the British code. As these articles— 
the articles here under discussion—all have a British origin, it is 
interesting in this connection to refer to the British code and note 
its present requirements. 

Mr. Slayden. What are you reading from ? 

Gen. Crowder. From the British Articles of War. Article 88 of 
the British code is very brief and seems to cover every point that 
I have covered in this revision and one other, and I want to ask the 



REVISION OF THE ARTICLES OF WAR,. 


73 


committee if it would not be advisable to substitute the present 
British article for our own. The British code says (art. 38) : 

Every person subject to military law who commits any of the following 
offences; that is to say, (1) fights, or promotes, or is concerned in, or connives 
at fighting a duel ; or (2) attempts to commit suicide, shall, on conviction by 
court-martial, be liable, if an officer, to be cashiered or to suffer such less pun¬ 
ishment as in this act mentioned, and if a soldier, to suffer imprisonment or 
such less punishment as is in this act mentioned. 

They have gotten rid of the archaic language employed in their 
earlier codes and have put in this brief article in substitution. I 
want to ask the committee if it would not be better in this instance 
to copy the British code? 

Mr. Evans. Instead of article 91 ? 

Gen. Crowder. Instead of new article 91. 

Mr. Evans. I think so, and especially on account of lines 20 to 24 
of article 91, which preserve a very beautiful piece of archaic 
language. That is not the intention of this code? 

Gen. Crowder. No, sir. 

Mr. Evans. There is one thing that this article does not mention, 
and that is the person who believes the challenge has passed and fails 
to report. 

Gen. Crowder. Would that not be covered by “conniving” ? 

Mr. Evans. No, sir. It might be made to read “ or having knowl¬ 
edge thereof fails to report.” 

Gen Crowder. Would you retain the provision in regard to at¬ 
tempts to commit suicide ? 

Mr. Evans. I think so. 

Gen. Crowder. I served as judge advocate of a department in 1909 
for three months and in that time we had three cases of attempted 
suicide, which we tried under the general article. It is an offense of 
not infrequent occurrence in our service and I would like to see it 
expressly punished in the code. I would suggest an article reading 
something like this: 

Every person subject to military law, who fights or promotes or is concerned 
in or connives at fighting a duel or having knowledge thereof fails to report 
the same, or who attempts to commit suicide, shall, on conviction by court- 
martial, be punished, if an officer, by dismissal from the service (they use the 
term cashiered) or to suffer such less punishment as the court-martial may 
direct, and if a soldier, to suffer 'such punishment as the court-martial may 
direct. 

We come now to a very important article in the new revision— 
important because it embodies a substantial change. I refer to new 
article 92, which, with its related article, 93, substitutes existing 
articles 58 and 62. 

I wish, first, to invite your attention to articles 58 and 62, which 
you will find printed in the right-hand column. From these two 
articles military courts derive all the jurisdiction they have to pun¬ 
ish civil, crimes. Article 58 is operative only in time of war. It 
covers capital crimes and the graver noncapital crimes, thus over¬ 
lapping article 62, which is operative both in. peace and war and 
covers “ all crimes not capital.” In view of the overlapping of these 
two provisions we are compelled upon the breaking out of war to 
stop pleading under article 62 the noncapital crimes enumerated in 
article 58, a difficulty which leads at the outbreak of war to numerous 
errors in pleading. 


74 


REVISION OF THE ARTICLES OF WAR. 


It will be noted that under the existing law—articles 58 and 62— 
courts-martial have no jurisdiction of capital crimes in time of peace. 
My proposition, explicitly stated, is to give courts-martial jurisdic¬ 
tion of the only two crimes made capital by the new penal code of 
the United States, viz, murder and rape, when committed by persons 
subject to military law in our foreign possessions, leaving these 
crimes to be tried by civil courts when committed within the geo¬ 
graphical limits of the States of the Union and the District of Co¬ 
lumbia. 

Under the present condition of the law, if one of our soldiers sta¬ 
tioned in the Philippines commits a capital offense there, lie goes 
before a court consisting of a single judge, to be tried for his life, 
and in a majority of cases it will be a native judge. The soldier 
will be tried under a code which has not been Americanized in all 
respects and by a court administering what is essentially an alien 
jurisprudence. 

Mr. Evans. I do not believe that is the trouble you usually have, 
but the trouble is that an American soldier kills a native. 

Gen. Crowder. That is the usual case. 

Mr. Evans. To leave that entirely to a court-martial, while the 
soldier does not always get off, it is a question whether it would not 
render our administration abroad unpopular. There is the serious 
question. 

Gen. Croavder. That is a legitimate criticism of the article and 
one which I had considered before proposing article 92. I was in¬ 
fluenced to propose the article largely, perhaps, by experience during 
our second intervention in Cuba. It was not Aery long after that 
intervention had been inaugurated until tAvo soldiers were charged 
with homicide of some natives. There Avas no civil court of the 
United States having jurisdiction. Plainly the court-martial could 
not try them, as the condition Avas not war. There were two courses 
open: First, to surrender them for trial before a Cuban court, which 
administered a jurisprudence in all respects alien, with whose pro¬ 
cedure they were unfamiliar, and which was conducted in a language 
not understood by the accused soldiers; the second course was to 
utlize the extraordinary authority which inhered in the office of the 
provisional governor and Avhich extended to the making of laws, to 
promulgate a special decree creating a proA-isional court for the trial 
of these men. This second course Avas followed, and the accused 
soldiers Avere tried by a court composed of officers of the Army, 
which administered the provisions of the Spanish criminal code. 
Should Ave be confronted again with the necessity of intervention, 
that situation is likely to repeat itself. I have been determined to 
avail myself of the first opportunity to pass up my share of respon¬ 
sibility for the continuance of these conditions to higher authority. 

Mr. Hughes. In lines 4, 5, and 6 control is given to the local au¬ 
thority in time of peace? 

Gen. Croavder. Within the United States and the District of Co¬ 
lumbia capital crimes will continue to be punished by the civil courts 
under lines 4, 5, and 6. The neAV article giving authority to courts- 
martial to try these crimes is operative only in our foreign posses¬ 
sions ; the language of the article Avould make it operative in Alaska. 
I do not insist upon Alaska being included, but I think as long as 
conditions there are unsettled there Avould be some propriety in 



REVISION OF THE ARTICLES OF WAR. 


75 


providing that soldiers stationed there should be tried for these 
offenses by their own officers. It is not, however, a provision that I 
would insist upon. 

Mr. Evans. I think that we had better trust our own people. 

Gen. Crowder. The argument that appeals to me is that a soldier 
goes to one of our foreign possessions in obedience to orders to 
serve the interests of his Government, and it does not seem to be 
keeping faith with him to turn him over to an alien court to be put 
upon trial for his life. 

Mr. Evans. That does not impress me so much. A man who com¬ 
mits murder is not entitled to extraordinary consideration. 

Gen. Crowder. But he is entitled to a fair trial. 

Mr. Evans. Yes, sir. 

Mr. Slayden. That brings us up against the question. Can he not 
get a fair trial in those courts? 

Gen. Crowder. We look forward to the time when he can. The 
time when I was there—1898 to 1901—was a period of insurrection. 
At that time, and for a considerable period thereafter, your question 
would probably have had to be answered in the negative. 

In the event new article 92 is rejected, I would suggest that article 
58 be retained as article 92, eliminating therefrom all noncapital 
offenses, because we shall have ample authority to try offenses not 
capital under the succeeding article. It is a source of confusion and 
embarrassment to charge these noncapital crimes under one article 
in time of war and under another in time of peace. 

Thereupon, the committee took a recess until 8.15 p. m. 

evening session. 

At the expiration of the recess the committee reassembled. 

The Acting Chairman. Gen. Crowder, you may proceed. 

Gen. Crowder. I pointed out that in articles 58 and 62 of the 
existing code, published on the right-hand column of page 37, at 
the top, that those articles give to courts-martial their grant of 
jurisdiction to try civil crimes. All the jurisdiction of a military 
court to try civil crimes is conferred by these two articles. The 
first article, 58, relates to the time of war, insurrection, or rebellion; 
the second article is in operation both in peace and war. 

As the second of those two articles covers all crimes not capital, 
it covers every crime mentioned in article 58 except murder and rape, 
which are the only offenses punishable by death in the penal code of 
the United States. But that is sufficient statement to show you that 
the two articles overlap each other. We must try all crimes not 
capital under article 62 in peace, but in time of war we have to 
jump to the fifty-eighth article of war—to try the most serious non¬ 
capital crimes we must go to article 58. The proposition in article 
92 is to give jurisdiction to the court-martial to try murder and 
rape outside the geographical limits of the States of the Union and 
the District of Columbia. The effect of article 92 will be to give 
us jurisdiction to try our soldiers for murder or rape outside of the 
States of the Union and of the District of Columbia; that is, in Alaska, 
the Philippines, and Porto Rico, or in Cuba, should be again inter¬ 
vene there. 



76 


REVISION OF THE ARTICLES OF WAR. 


Our soldiers go to these foreign possessions under orders; it is true 
they volunteer for military service, and that is understood to carry 
with it an obligation to serve anywhere the Government needs their 
services, but, in a sense, they go there under compulsion, and it seems 
to me unjust that when in compliance with the orders of their 
country they go into a land where the jurisprudence is an alien one, 
and where it is exercised in a language which they do not understand, 
it is unfair to turn them over to the courts of such a country for 
trial. 

Article 93 is a substitute for article 62 of the existing code, but not 
a complete substitute. It seemed to me that it was objectionable to try 
such grave crimes as are enumerated in article 93, manslaughter, arson, 
embezzlement, perj ury, and assault with intent to commit any felony, 
under a general authorization of existing article 62 to try the crimes 
not capital. It seemed to me that they ought to be enumerated in a 
separate article, these graver noncapital crimes, and retain article 
62 in the new code for the purpose of trying minor crimes that 
escape enumeration in a penal code. I have therefore grouped the 
principal noncapital crimes in article 93; that is, made them the 
subject of a separate article. 

It reads: 

Various crimes .—Any person subject to military law who commits man¬ 
slaughter, mahem, arson, burglary, robbery, larceny, embezzlement, perjury, 
assault with intent to commit any felony, or assault with intent to bodily harm, 
shall be punished as a court-martial may deem- 

Mr. Evans. Let me ask you, there. General: Where do you want 
to retain 62 in there? 

Gen. Crowder. I have retained it, and I will explain this retention. 
It is the last article in the penal code. 

Mr. Evans. Let me ask you one question on that. I have but one 
question on article 93, and that is whether that definition is exclusive 
without doubt. There are some crimes that, under the definitions of 
some States, that you would not include here. Now, many States 
have murder in the first and second degree. Then, in that case, we 
will say—what would be the construction here? If they are tried in 
times of peace it would not make any difference; in times of war I 
do not know that that makes any difference. You are satisfied that 
you have gotten everything that you need to have? You need have 
no general words? 

Gen. Crow t der. I am satisfied with that, because we have been ex¬ 
ercising our war jurisdiction for all time under an article which 
punishes the crime by the single designation “ murder,” man¬ 
slaughter, larceny,” etc.; and in peace we punish civil crimes under 
the authority of the existing sixty-second article of war to punish all 
crimes not capital. 

Mr. Evans. Suppose we had there, “ or commit any felonv ”? 

Gen. Crowder. Where? 

Mr. Evans. I am simply speaking of the result, 

Gen. Crowder. Article 93? 

The Chairman. It is in there. 

Mr. Evans. Assault with intent to commit any felony? 

Gen. Crowder. I thought I had a complete list of felonies. 

Mr. Evans. I do not at this moment recall any you have not got. 




REVISION OF THE ARTICLES OF WAR. 


77 


Gen. Crowder. If I have omitted any it will be caught by article 62 
m the form I have retained it in the new code, viz, “ all crimes not 
capital.” That language is retained in new article 96. 

Mr. Evans. What crime of the military law, General ? 

Gen. Crowder. We adopt the definition of the common laAv or of the 
statute law of the United States. Chief Justice Fuller in Carter v. 
McClaughry (183 U. S., 397) says of the reference of the existing 
62d article to “ all crimes not capital ” that it embraces crimes created 
and made punishable by the common law or by the statutes of the 
United States. 

Mr. Evans. We are, in the statutes of the United States, constantly 
making certain trade relations crimes that did not use to be. That 
raises quite a question. Where is this last section ? 

Gen. Crowder. It is the last punitive article, No. 96, on page 40. 

Mr. Evans. We ought to construe these two articles together. 

Gen. Crowder. There is no overlapping of jurisdiction between 
them. You will notice that article 96 says, “ not mentioned in these 
articles.” 

Mr. Evans (reading) : 

Though not mentioned in these articles, all disorders and neglects to the 
prejudice of good order and military discipline, all conduct of a nature to bring 
discredit upon the military service, and all crimes or offenses not capital of 
which persons subject to military law may be guilty, are to be taken cognizance 
of by a general or special or summary court-martial, according to the nature 
and degiVe of the offense, and punished at the discretion of such court. 

I think we want sufficiently definite expression to cover that. You 
have that covered here. You say, “ all conduct of a nature to bring 
discredit upon the military service, and all crimes or offenses not 
capital.” 

Gen. Crowder. Yes, sir. 

Mr. Evans. Here are certain crimes and offenses. 

Gen. Crowder. You asked me a question a minute ago as to how 
we would handle degrees of murder and other crimes established by 
civil statutes. Degrees of crime are not known to military law. 
Winthrop says in his comment on the Fifty-eighth Article of War: 

It is to be observed that as these crimes are not specifically defined in the 
article or elsewhere in the written military law, they are to be interpreted by 
the doctrines of the common law, each being viewed as the common-law offense 
of the same name. 

In this connection it may also be noted that no such distinctions as degrees 
of offenses, such as are established by the statutes of some of the States, are 
recognized by the military law, and that such distinctions have no bearing what¬ 
ever upon the subject of the definition of the crimes specified in the article, but 
are material only with reference to the question of their punishment, hereafter 
to be considered. (Winthrop’s Mil. Law and Free., vol. 2, p. 1040.) 

Mr. Evans. Whether we want to continue that as the law is the 
question. 

Gen. Crowder. It is a simple procedure to enumerate the various 
crimes by name, leaving us to the common law for a definition of the 
crimes and without going into the refinements of statutory definition. 

Mr. Evans. Let us get right down to the cases that may happen. 
This refers only to the trial outside of the United States. Section 93 
contains no such limitations ? 

Gen. Crowder. Oh, no. We try all crimes not capital now within 
the States. 


78 


REVISION OF THE ARTICLES OF WAR. 


Mr. Evans. Within the States, by military- 

Gen. Crowder. By military courts? 

Mr. Evans. Yes. 

Gen. Crowder. We only stop at capital crimes. 

Mr. Evans. Embezzlement, robbery, larceny, etc., are to be tried 
according to the military law; in other words, you are to try certain 
crimes committed within the jurisdiction by a law different some¬ 
times from the civil law of that jurisdiction? 

Gen. Crowder. Yes. However, we can not, in the punishment of 
any of those offenses, give penitentiary confinement unless it is au¬ 
thorized by the law of the place. 

Mr. Evans. That is interesting, and may cause some question 
where the law of a place does not mention the crime by the same 
definition you have it here; whereas you have murder in the first 
and second degree, that would not apply to murder—yes, it would, 
because murder is not a capital offense in certain jurisdictions. 

Gen. Crowder. No. 

Mr. Evans. All I want to do is to see that it is inclusive, so that 
when we are through with this legislation some question does not 
arise for which we have not covered the ground. 

Gen. Crowder. I felt I was following safe lines when I adhered to 
the terminology of the old law in respect of the enumeration of civil 
crimes. 

Mr. Evans. Where, then, is there a conveyance of jurisdiction in 
this code to try offenses less than capital in times of peace? 

Gen. Crowder. Where is the authority? 

Mr. Evans. Yes. 

Gen. Crowder. In article 96, page 40. I intend to leave that there, 
but to take out of it the more important noncapital crimes and 
enumerate them in 93. 

Mr. Evans. You are answering my question now. My question 
is that I have not seen any absolute grant of jurisdiction. There is 
not any in the proposed code, except that you added it to No. 62. 

The Chairman. What is it you can take out of 62 but that? I do 
not see any enumeration of crimes there. 

Gen. Crowder. All crimes not capital are included in the new 
article 96 and were included in old article 62. We have precisely 
the same grant of jurisdiction in both articles as to noncapital crimes. 

The Chairman. Manslaughter, mayhem, arson, burglary, etc. ? 

Gen. Crowder. We have never had any express grant of jurisdic¬ 
tion to try the crimes you enumerate, except in article 58 in war. 
As I have explained, we have been trying them under the general 
article—article 62 —which gives authority to try all crimes not capi¬ 
tal; and I thought it proper that this general designation should be 
departed from to the extent of enumerating the more important non¬ 
capital crimes and making them the subject of a new article, which 
I have done in new article 93. 

Mr. Evans. You could fix this article this way [reading] : 

All crimes not capital and all disorders, etc., are to be taken [scratch out 
“though not mentioned in the foregoing Articles of War”]—are to be taken 
cognizance of by general, regimental, garrison, or field, officers’ courts-martial. 

We want to change the present system. You have three courts- 
martial, have you not? 

Gen. Crowder. Yes, sir; general, special, and summary. 





REVISION OF THE ARTICLES OF WAR. 


79 


Mr. Evans. Then, scratch out “ by regimental, garrison, or field 
officers courts." 

Gen. Crowder. I see your point, Mr. Evans. You do not see any 
grant of jurisdiction to any of the courts provided for in the new 
code, and you are looking for such a grant of jurisdiction as vou 
find m existing articles 81, 82. and 83,.relating to regimental and 
garrison courts? 

Mr. Evans. Yes, sir. 

Gen. Crowder. The grant of jurisdiction to try these offenses is 
made express in an article which we passed the other day and which 
is inserted in the new code under the subhead “Jurisdiction.” You 
will find it on page 6 of the report. 

Mr. Evans. This covers it right here [indicating]. 

Gen. Crowder. It appears here because I have tried to keep out 
of the punitive articles any grant of jurisdiction and put that grant 
in the articles relating to jurisdiction. 

Mr. Evans. I have got it here on page 6. 

Gen. Crowder. In article 12 on page 6 [reading] : 

General courts-martial shall have power to try any person subject to mili¬ 
tary law for any crime or offense made punishable by these articles and any 
other person who by statu,e or by the law of war is’subject to trial by mili¬ 
tary tribunals. 

In the following article 13 on the same page it is provided that— 

Special courts-martial shall have power to try any person subject to mili¬ 
tary law, except an officer, for any crime or offense not capital made punish¬ 
able by these articles * * *. 

Then follows in article 13 a limitation upon the power of special 
courts-martial to punish, viz, six months’ confinement and for¬ 
feiture. By reason of this limitation upon the power to punish the 
graver noncapital offenses are not tried by this court. 

In the old article the grant of jurisdiction was in the punitive 
articles. We have separated them in this new code. 

Mr. Evans. That answers the question, I think. 

Gen. Crowder. Now, we come to article 94, which is taken from 
the Revised Statutes and made an article of war in the revision of 
1874. 

Mr. Kahn. May I ask you one question before you go on to that? 
I have just came in, General. 

Gen. Crowder. Yes, sir. 

Mr. Kahn. Article 93 says that attempt to commit any felony, or 
assault with intent to do bodily harm, shall be punishable as a 
court-martial may direct. I have not looked up the statutes for 
some little time, but my recollection is that the statutes make very 
few offenses felonies. Have you looked into that, Gen. Crowder? 

Gen. Crowder. Well- 

Mr. Kahn (continuing). That a good many things in the stat¬ 
utes are called felonies which in the States are only misdemeanors. 

Gen. Crowder. I have had in mind the old common-law felonies. 
Offenses that carry penitentiary confinement. 

Mr. Kahn. I know a very iarge number of offenses defined and 
punished by State codes fall into that category. That is true of the 
State codes—how about the Federal? 



80 


REVISION OF THE ARTICLES OF WAR. 


Gen. Crowder. The new Penal Code of the United States went 
into effect January 1, 1910, but I do not think it made any change 
in this regard. I have not critically examined it. 

Mr. Kahn. I have not looked it up for some little time. 

Gen. Crowder. New article 94 is existing article 60 with abso¬ 
lutely no change except the phrase “Any person in the military serv¬ 
ice of the United States” is made to read in the new article “Any 
person subject to military law.” 

The Chairman. Otherwise it is precisely the same? 

Gen. Crowder. Yes, sir; its origin is the enactment of Congress 
during the Civil-War period to provide adequate means for punish¬ 
ing frauds in connection with the military service, which were fre¬ 
quent during that period. It is a very serviceable article to-day. 
We have tested every clause of it by numerous prosecutions and no 
defect has yet been found. 

Mr. Kahn. Why do you prefer the new language to the old ? 

Gen. Crowder. Because the phrase “ any person in the military 
service” does not include all persons subject to military law. We 
have these numerous retainers to the camp and contractors serving 
with the Army in the field who can commit fraud. 

That takes us to article 95. There is a very slight change in 
article 95. I have included the words “ or cadet,” so as to make 
the article read (reading) : 

Any officer or cadet who is convicted of conduct unbecoming an officer and 
gentleman shall be dismissed from the service. 

It is now the accepted construction that a cadet is neither an officer 
nor an enlisted man; he does not fall, therefore, within the pro¬ 
vision of old article 61, which punishes conduct unbecoming an 
officer and a gentleman. 

The Chairman. General, do you need that about the cadets? 

Gen. Crowder. There is a little bit of sentiment attached to that. 
We have the idea of building up among the cadets the standard of 
an officer ; and I wanted authority to try them as officers for conduct 
unbecoming a gentleman. 

The Chairman. May you not by doing that affect other mat¬ 
ters that you do not have in mind? 

Gen. Crowder. Well, I would be glad to be informed. 

The Chairman. May you not be giving them a pensionable status? 

Mr. Kahn. If he is dismissed from service for conduct unbecom¬ 
ing an officer and a gentleman, I do not think he could get any 
pension. 

The Chairman. Certainly not. I was just wondering if that 
generally did not affect the legal status of a cadet in a way ? 

Mr. Evans. I doubt if the infliction of punishment would create 
that status. 

Gen. Crowder. I do not think this changes the status; on the con¬ 
trary, it emphasizes the difference, by the fact that the term cadet 
is recognized as not embraced in the term “officer.” It says in 
effect the standards of the officer we will exact of the cadet. 

Mr. Evans. That does not create the same status—it differentiates 
rather than confuses. 

Gen. Crowder. I have taken some liberties with article 96, which 
is our old article, or existing article 62. It is sometimes known as 




REVISION OF THE ARTICLES OF WAR. 


81; 


the “ general article,’- because it catches everything that is omitted 
from the specific articles, and it has sometimes been called the 
Devil’s article.” The origin of the article is the British code of 
1642, and it has never lost a place in any of the succeeding British 
codes, and it is in the British code to-day. Although we have about 
44 punitive articles in the existing code specifically defining offenses, 
we try about 25 per cent of all offenses under this general article. 
You will notice that I have transposed the language somewhat. 
The transposition is for the purpose of taking advantage of a de¬ 
cision of the Supreme Court of the United States in the case of a 
soldier tried in the Philippines for manslaughter. The case was 
decided in 1907 by Justice Harlan. Prior to Justice Harlan’s 
opinion the construction of this article most frequently advanced 
was that it gave jurisdiction to courts-martial over crimes not capi¬ 
tal only when the circumstances under which the crimes were com¬ 
mitted directU affected military discipline. The view was advanced 
by many persons that the crimes could be tried by court-martial 
when committed under circumstances which affected in any material 
though inferior degree the discipline of the service; and in the 
latter view all crimes not capital could be tried, for none could be 
committed bv a member of the military service which would not 
to an inferior degree affect the discipline of the service. Under the 
former construction it was difficult to trace the line between what 
was triable as prejudicial to military discipline and what was not 
so triable. Justice Harlan’s language seems to adopt the latter con¬ 
struction, and goes further. He uses the following language: 

The crimes referred to in that article embrace those not capital committed 
by officers and soldiers of the Army in violation of public law as enforced by 
the civil power. No crimes committed by officers or soldiers are excepted by 
the above article from the jurisdiction conferred upon courts-martial excepting 
those that are capital in their nature. 

It is most undesirable that the language of the article should con¬ 
tinue uncertain. I have changed the order of statement so as to make 
it absolutely certain that the phrase appearing in the existing sixty- 
second article of war, viz, “ to the prejudice of good order and mili¬ 
tary discipline ” does not qualify the phrase “ all crimes not capital,” 
but onlv disorders and neglects. 

Mr. Evans. Yes; but that language which you have read in Justice 
Harlan’s opinion says you can not try any crime except that which 
was punishable by law. Do you not understand it that way ? 

Gen. Crowder!^ Justice Harlan says, “ The crimes referred to in 
that article embrace those not capital,” but it does not say that other 
crimes are excluded. 

Mr. Watkins. I understand that the civil law means the law of the 
land and that it covers civil or criminal cases. 

Mr. Evans. That is my form. That is what I maintain, and the 
article therefore does not seem to me to cover military law. 

Gen. Crowder. I think I can make it plain that the contrary view 
is the one we must adopt. In the Grafton case there was a plea in 
bar of trial before the civil court based on a previous acquittal by a 
military court; that is, Grafton was arraigned before a civil court 
of the Philippines for homicide, and the plea was made that he had 
been found not guilty by a court-martial of that particular homicide. 

Mr. Evans. That was manslaughter, and then a capital case, and 
that takes it out of this act. 

46382—12-6 


82 REVISION OF THE ARTICLES OF WAR. 

Mr. Kahn. Manslaughter is not a capital case. Murder would be. 
Homicide would cover both. 

Gen. Crowder. As I have said, Grafton had been tried by a court- 
martial and acquitted. He was demanded by the civil authorities of 
the Philippines, and he went before the Philippine court to be tried 
for the same homicide which the court-martial had tried. 

Mr. Anthony. The real purpose is to prevent a soldier being tried 
in hostile territory? 

Gen. Crowder. No, sir; that is in another article. 

Mr. Evans. I am afraid, General, you are not getting this point. 
The language of Justice Harlan makes article 62 cover only those 
offenses which are punishable bv the laws of the land, whereas you 
want to go beyond that. 

Gen. Crowder. Justice Harlan says it embraces offenses which are 
punishable by the laws of the land: he does not say that it embraces 
no others. 

Mr. Kahn. May I look at his decision, if you have it convenient ? 

Gen. Crowder (handing him decision). You will easily see how 
you must read limitation into the language we are discussing when 
you consider the issue that w T as raised in the trial of Grafton. 

Mr. Evans. I want to avoid this. I want to be sure that no one 
raises it with effect before a court. 

Gen. Crowder. What Justice Harlan decided was that the military 
court had tried a crime in its civil aspects, and that therefore the man 
could not be tried by the Philippine court without being tried twice 
for the same offense. 

Mr. Evans. In other words, res adjudicata? 

Gen. Crowder. Yes; but Justice Harlan held that the courts of 
the Philippines were courts of the United States, and that as long as 
the courts trying this case, military and civil, were courts of the same 
jurisdiction, an acquittal by one was a bar to trial by the other. 

The Chairman. The Supreme Court released him? 

Gen. Crowder. The Supreme Court released him. 

Mr. Kahn. They held that the acquittal of the court-martial was 
a bar? This language would certainly carry that out. 

Gen. Crowder. You can see the only thing Justice Harlan was em¬ 
phasizing—was the fact that the court-martial had tried the case 
in its civil aspects; he did not say it had not also tried it in the mili¬ 
tary aspects. 

Mr. Kahn. This is at cross-purposes; this is not the point raised 
at all. The point raised is whether we are not minimizing our ju¬ 
risdiction in that opinion and whether your words here are suffi¬ 
ciently definite, to give you jurisdiction for military courts, which 
is necessary to preserve order over and above that jurisdiction. The 
civil courts have all offenses- 

The Chairman. You want all the powers of the civil court plus? 

Mr. Evans. Exactly; we need them. You have got to have them 
in military affairs. 

The Chairman. The General thinks he has that now—a bit fur¬ 
ther • along. 

Mr. Evans. Here is the question, General: “All conduct of a na¬ 
ture to bring discredit upon the military service.” That is pretty 
vague language. “ J 




REVISION OF THE ARTICLES OF WAR. 83 

Gen. Chowder. I want to explain that. That was inserted for a 
singie purpose. We have a great many retired noncommissioned 
officers and soldiers distributed throughout the body of our popula¬ 
tion and a great many retired officers. If the retired officer does 
anything discreditable to the service or to his official position, we 
can try him under the sixty-first article of war for conduct “ un¬ 
becoming an officer and a gentleman.” We can not try the non¬ 
commissioned officer or soldier under that article, nor can we try 
him for conduct prejudicial to good order and military discipline; 
because the act of a man on the retired list, away from any military 
post, can not reasonably be said to affect military discipline. I 
threw in that language to cover the cases of those men. 

Mr. Evans. The language is all conduct of a nature to bring dis¬ 
credit upon the military service.” 

Mr. Kahn. That language is in the existing law, only that it has 
been simply transposed in this new article. All that language is in 
article 62, “ all disorders and neglects which officers and soldiers 
may be guilty of,” now becomes a part of this—officers and soldiers 
may be guilty of to the prejudice of good order and military dis¬ 
cipline. That is all in the existing law and the general has just 
transposed it a little. 

Mr. Evans. But here is a serious question; courts military there¬ 
fore are given authority to create and to punish offenses which they 
may say bring discredit upon the military service and which we may 
consider as picayune in their nature, is one of the problems, if we grant 
power in any such very broad language. We are conveying here 
practically punitive power for officers to punish men or punish each 
other under courts-martial. The things which one man may con¬ 
sider—a martinet, for example—prejudicial to the service and an¬ 
other man may not. You see it is a very broad language for legisla¬ 
tion, an expression of opinion of what ought to be; but it seems to 
me that is a little too loose for the law. 

Gen. Crowder. Is it any looser than the phrase preceding a Con¬ 
duct unbecoming an officer and a gentleman ” ? 

Mr. Evans. That has been construed so often.. 

Gen. Crowder. So has “ Conduct to the prejudice of good order 
and military discipline.” 

Mr. Kahn. Even by the Supreme Court of the United States. 

Mr. Evans. Do you think there is adjudication sufficient to give 
those words a definite adjudicated meaning? 

Gen. Crowder. The Supreme Court has said with reference to 
this very article, that while its language is general its meaning to the 
military mind is not at all obscure, and that it serves a very useful 
purpose. I do not recall right now the case in which the court 
expressed this view that this language had a definite meaning to 
the military mind. 

Mr. Kahn. Has article 62 been construed by the Supreme Court 
of the United States often enough to give it at the present time a defi¬ 
nite meaning? 

Gen. Crowder. Oh, yes. 

Mr. Kahn. Then, what would be the object in changing it? You 
have no judicial decisions which affect it absolutely. You are using 
new language which evidently must be passed upon by the courts 


84 


REVISION OF THE ARTICLES OF WAR. 


again, or probably will be passed upon by the courts again, and you 
may get an entirely different decision. 

Gen. Crowder. I understand your inquiry to relate to the new 
language, viz. “ All conduct of a nature to bring discredit.” Only 
the small class of men that I have spoken of could be tried under 
it, for the soldier on the active list is covered by other articles. The 
officer on the active list or on the retired list is covered by the pre¬ 
ceding article, and here are a lot of retired noncommissioned officers 
and enlisted men who misbehave occasionally, I am sorry to say, 
and my office is called upon to consider their cases. Sometimes it 
is because of refusal to support their families while on this 
retired pay; complaints of creditors come into the office; and in the 
corresponding case of the officer we can try them under the preceding 
article for conduct unbecoming an officer and a gentleman. I wanted 
that language in this article in order to try those retired soldiers 
whose cases became flagrant. We have cases of absolute abandon¬ 
ment of family by men enjoying retired pay of $45 to $50 a month. 

Mr. Hughes. This language “ all conduct of a nature to bring dis¬ 
credit upon the military service” seems to include everything? 

Gen. Crowder. It was inserted for that purpose. 

Mr. Kahn. It is like the catch-net language of the tariff bills. 

Gen. Crowder. Yes. It is not of the greatest importance, but it 
would relieve the service of considerable embarrassment to have that 
language retained. 

The Chairman. You better strike that out. I have an idea it is 
abundant now to catch them. 

Gen. Crowder. The next chapter relates to courts of inquiry. So 
very few changes are made in the articles under the subjects of 
“ Courts of inquiry ” that I think we can pass over them rather 
quickly. You will notice in the first article under that heading that 
I have omitted certain language, much for the same reason that we 
have asked to have omitted the preachment in the article about duel¬ 
ing, Mr. Evans. The omitted language follows “ Courts of inquiry ” 
in the third line of existing article 115 and says that as such courts 
“may be perverted to dishonorable purposes and may be employed 
in the hands of weak and envious commandants as engines for the 
destruction of military merit,” they shall not be ordered by any com¬ 
manding officer except upon the request of the officer or soldier whose 
conduct is to be inquired into. I have omitted the quoted language, 
but preserved the prohibition. Under the new article, as under the 
existing one, the President is the only authority that can order a 
court of inquiry on his own motion. A subordinate must order them 
if at all upon the request of the party to be investigated. 

The Chairman. That is an old statute? 

Gen. Crowder. That is an old statute. The new article preserves 
that prohibition upon the commanding officer ordering a court of 
inquiry, but omits the preachment. I have no objection to it remain¬ 
ing in the article, if anybody wants it. 

Mr. Evans. I think we might change “ of ” to “ into.” 

Gen. Crowder. That should be done. 

Mr. Kahn. Inquire into the conduct of a man. 

Mr. Hughes. Changing “ of ” to “ into ” makes better English. 

Mr. Evans. Yes; that is better English. 



REVISION OF THE ARTICLES OF WAR. 


85 


Gen. Crowder. The next relates to the composition of courts of 
inquiry. The old article said that the court should consist of one or 
more officers, not exceeding three. There has been but one instance in 
the history of our Army when we convened a court of one officer. 
There has always been the maximum, and our most important courts 
of inquiry have been convened under special legislation authorizing 
five or seven, or whatever number of members was deemed appro¬ 
priate. 

The next article is a new one, article 99—members of courts of in¬ 
quiry may be challenged by the party whose conduct is being inquired 
into and by the recorder, but only for cause stated to the court. We 
have been according the right of challenge during the entire time we 
have been convening courts of inquiry without any authority of 
statute so to do, but because it was just and proper to give a man a 
right to challenge off of the court of inquiry any member for cause. 
I have made this a matter of express grant. 

The oath of members is preserved in the form in which it appears 
in the existing articles. Of course, I have added that formal con¬ 
clusion in case of affirmation. 

The Chairman. It should be “ I, A B ”? 

Gen. Crowder. This says, “ The recorder of a court of inquiry shall 
administer to the members the following oath,” and he says “ You.” 
We have made that correction where we did not have that phrase. 

Article 101, “ Powers and procedure of courts of inquiry,” is the 
existing law, with the obligation written into it that the reporter and 
interpreter shall take the oath of a reporter and interpreter for a 
court-martial. You will recall we prescribed an oath for the reporter 
and interpreter for courts-martial. As the procedure of courts of 
inquiry is assimilated to that of courts-martial, we simply require 
them to take the same oath. 

It is characteristic of our courts of inquiry that they render no 
opinion on the merits of a case unless they are expressly required to 
do so, and I have retained that article in the new code—article 119 
of the existing code. 

The Chairman. I should think that would be obviously a matter 
of course that the duty of a court of inquiry was to express an 
opinion. 

Gen. Crowder. It depends upon what particular use of the court of 
inquiry you have in contemplation. At a previous hearing I spoke 
of the character of courts of inquiry and the analogy of their pro¬ 
cedure to that of a grand jury, but that is not the primary use of a 
court of inquirv. They are frequently to pass upon the merits of a 
campaign and to inquire into the conduct of a particular general in 
a given battle, not with the idea that he is to be tried, but for the 
purpose of straightening out the history of the engagement; and 
perhaps we have more courts of that character than we have had of 
any other. 

Mr. Anthony. Is not the whole function of a great many courts 
of inquiry to fix the responsibility for loss of Government property ? 

Gen. Crowder. That has always been done by survey. 

Mr. Anthony. You do not call them a court of inquiry? 

Gen. Crowder. No: that is not a court of inquiry. 


86 


REVISION OF THE ARTICLES OF WAR. 


The Chairman. A court of inquiry is appointed for the purpose 
of ascertaining the state of facts. Having ascertained the state of 
facts it must necessarily report it to somebody. 

Gen. Crowder. They may report the facts, but they express no 
conclusions unless required to do so. 

Mr. Evans. They give judgment, but write no opinion. They 
enter the judgment. 

Mr. Kahn. No; they do not give judgment. They simply say, 
“ These are the facts.” 

Mr. Evans. Then they have the finding of fact. 

The Chairman. Let us see about that for a moment. Take the 
illustration the general made—suppose it were an inquiry to in¬ 
vestigate the conduct of a particular general in an engagement. 

Gen. Crowder. Let me give you an example right there, and then 
you can continue your remarks. 

The Chairman. Very well. 

Gen. Crowder. A court of inquiry was convened by President 
Jackson at Frederick, Md., to inquire into the causes of the failure 
of the campaigns in Florida against the Seminole Indians, and also 
in other campaigns against the Creeks. 

The Chairman. They had to report an opinion? 

Gen. Crowder. They did not have to, and perhaps the convening 
authority preferred to form his own opinion to have them report 
the facts. 

Mr. Evans. Where do we find that the jurisdiction of this court of 
inquiry is in this code? Let us get down to the basic principles. 
Where does the court of inquiry get any jurisdiction at all in this 
code. Let us get at the jurisdiction question first. 

Gen. Crowder. It is discussed here under the head of its function 
rather than its jurisdiction. 

Mr. Kahn. Article 97, page 40, at the top, formation of the court, 
when and by whom ordered. 

Mr. Evans. Let us get the exact language: 

Examine into the nature of any transaction of or accusation or imputation 
against any officer or soldier who may be ordered by the president. * * * 

Mr. Kahn. Or by any commanding officer. 

Mr. Evans. Now, then, to inquire into the nature of any transac¬ 
tion. They must report, then, the nature of the transaction, the 
accusation, or imputation. They must report as to the accusation or 
imputation. 

Gen. Crowder. I can answer your question directly in the words 
of Winthrop: 

The court of inquiry, so called, is really not a court at all. No criminal 
issue is formed before it. It arraigns no prisoner, receives no plea, makes no 
finding of guilt or innocence, awards no punishment. Its proceedings are not 
a trial; nor is its opinion when it expresses one a judgment. It does not 
administer justice and is not sworn to do so, but simply to “ examine and 
inquire.” It is thus not a court, but rather a board—a board of investigation, 
with the incidental authority, when expressly conferred upon it, of pronounc¬ 
ing a conclusion upon the facts; but as it is a sworn body, and as the witnesses 
before it are sworn and examined and cross-examined as before courts-martial, 
it is a board of a higher sort in the nature of a court, and has thus come to 
be termed a court in the law military. 

Mr. Kahn. Would it not be better to change that language and 
say boards of inquiry? 


REVISION OF THE ARTICLES OF WAR. 


87 


Gen. Crowder. I hate to lose any of the terminology of our code. 

lhe Chairman. If the meaning is clear? 

Mr. Evans. It is not. The moment von talk about a court to the 
average man he gets confused about it. It is inaccurate English, 
ail Af iv caii y <)n inaccuracy to confuse everybody’s mind? 

. ■ i* Eahn. A court is supposed to try the case and find upon the 
evidence; a board does not necessarily have to do that. 

Mr. \V atkins. No, Mr. Kahn, that is a mistake; a court is not 
always expected to do that. Take the jury trial in the United States 
court. 1 hey very frequently review all the evidence in the case and 
then submit it to the jury for decision without passing upon the 
question of the guilt or innocence at all. 

Mr. Kahn. And yet the function of the court is to get a final de¬ 
cision, ca on though it be not by the court; it is by the jury, then. 

. ^. r * Evans. But Mr. Kahns distinction is nevertheless well taken, 
if his definition of a court was a little broad in this particular in¬ 
stance. It is not a court. The general has just read us that. Why 
continue to call it so. when by inaccurate English you cause an inex¬ 
plicable confusion to any but the trained military lawyer? That is 
one of the objections I have to technical language of any kind except 
where absolutely necessary, and T do not think it is absolutely neces¬ 
sary here. 

Gen. Crowder. Let me read from Winthrop a little further on 
that point: 


Hut the court of inquiry, though only a quasi-judicial body, is an instrumen¬ 
tality of no little scope and importance; its investigations are frequently much 
more extended and its conclusions more comprehensive than would be those of 
a court-martial in a similar case; and in individual instances its results may 
be scarcely less final than if it had the power to convict and sentence. It is 
mainly, however, as contributions to history or to the annals of the Army that 
the researches of the courts under consideration are significant and valuable. 
(Citing the courts of inquiry convened in the cases of Maj. Andre. Gen, Hamar, 
1791: Wilkinson, 1808; Winder, 1815; Gaines and Scott, 183G; Pillow, 1848; 
Buell. 1862: Howard, 1874; Warren, 1879, etc.) 

Mr. Patten. Don’t you think, Mr. Evans, that this terminology 
applies to a trained lawyer like yourself- 

Mr. Evans. I want it so that the ordinary layman will understand 
it. To the average man’s understanding the court of inquiry is a 
court with power to pronounce judgment; it implies judicial power 
to the average man. 

Mr. Watkins. That is true. 

Mr. Evans. I am not discussing this as a technical definition, but 
I am rather inclined to agree with Mr. Kahn that we ought not to 
continue to use language that to the layman is confusing. If it were 
not for your next section here it would not be so objectionable. It 
says, “unless especially ordered so to do.’’ I do not think it is very 
material, but if I were going to interpret the law I do not think I 
should be bound down by the misuse of language. 

Gen. Crowder. We convene boards of survey to pass upon prop¬ 
erty that is lost or damaged in the public service. The function of 
a board is so clearly subordinate to the function of a court of inquiry 
that it would seem like lowering the court of inquiry a little in the 
judicial scale to classify it as a board. 

Mr. Evans. That is the main trouble I find with the Army. The 
essence of the thing seems to be so very unimportant. The real 
thing is that this is a board and it is not a court. 



88 REVISION OF THE ARTICLES OF WAR. 

Gen. Crowder. I suppose we do capitalize those things to some 
extent, and we become very fond of the names. 

Mr. Evans. Exactly. Lawyers do the same thing, and I think 
they make a great mistake when they do it. 

Mr. Kahn. I notice that last sentence there, General: 

In case the record can not be authenticated by the recorder, by reason of his 
death, disability, or absence, it shall be signed by the president and by one 
Other member of the court. 

The thought occurred to me when you were speaking of these 
cases of certain generals who were heard before courts of inquiry 
that possibly such a court, if it were held while the Army was in 
the field, might eventually get into a condition where the president 
also would be unable to sign the record. 

Gen. Crowder. No man is designated as president. The senior 
always acts as president; so he is always present. 

Mr. Kahn. That explains it. 

Gen. Crowder. That carries us to “Miscellaneous provisions.” 
Article 104 is a new article in this code. It has a special purpose. 
Our existing code embodies no express recognition of punishments 
other than such as can be inflicted by a court-martial. Summary 
punishments have not been recognized except in 25, 52, and 53 of the 
existing articles. They require certain administrative punishments, 
such as to ask pardon for using provoking speeches (art. 25), small 
forfeitures for misbehavior at any place of divine worship, or profan¬ 
ity. There is no record that these articles have ever had any execu¬ 
tion, and I have asked to have all of them except article 25 omitted 
from the code. If they go out, there will be no recognition in the 
code anywhere of summary punishment. 

Now, there has been a demand among our company commanders 
for a long time for more disciplinary power over their men. We 
have been going step by step, by regulations, to give them that power. 
The company commander likes to feel that his disciplinary arm is 
strong in dealing with the family of 65 men which the law gives 
him to govern. It seemed to me that we were on rather dangerous 
ground in trying to grant that power by regulation alone, especially 
as it seemed to be a principle of our code that punishment should be 
judicially imposed. I have undertaken to write into a new article 
the provisions of the existing regulations on this subject which have 
stood the test of experience. 

Mr. Evans. What you have heretofore done without warrant of 
law you want now to incorporate in the law ? 

Gen. Crowder. Yes, sir. 

The article—new article 104—was then read to the committee. 

Mr. Kahn. Well, General, why should a soldier who has objected 
to the punishment and taken up an appeal be compelled to undergo 
the punishment while the appeal is pending? Should not the ap¬ 
peal act as a bar until final decision ? 

Mr. Evans. I should sav not, in an army. 

Gen. Crowder. I should think so in dealing with an offense of 
any gravity, but these are minor offenses. 

Mr. Evans. I should think that for the discipline of the Army 
the superior officer must have some such power. 


REVISION OF THE ARTICLES OF WAR. 89 

The Chairman. General, what is the character of offenses, by way 
of illustration? 

Gen. Crowder. A soldier is absent from fatigue; he is boisterous 
in quarters; he fails to salute an officer. Most company commanders 
dislike to have their men before courts-martial, and it helps the 
discipline of the command wonderfully to be able to step right in 
and handle the case on their own authority. 

The Chairman. Can he order men to the guardhouse for a little 
while ? 

Gen. Crowder. No; I am withholding even that much authority 
from the company commander. I have mentioned the punishments 
here that he can impose: First, admonition; second, reprimand; 
third, withholding of privileges; fourth, extra fatigue—he goes on 
the fatigue detail or is detailed on kitchen police; fifth, restriction 
within certain specified limits. Then I add that it shall not include 
forfeiture of pay or confinement under guard. 

Mr. Hughes. It seems to me it is all very mild. 

Mr. Watkins. What might be the extent of that extra fatigue? 
What would it be possible to make the punishment under that regu¬ 
lation ? 

Gen. Crowder. That would rest very largely with the post com¬ 
mander. If it were a question of punishment by court-martial it 
would be regulated by our maximum punishment order. 

Mr. Watkins. What is that? 

Gen. ^Crowder. An order issued by the President, under authority 
of law', which provides that the punishment imposed by court- 
martial shall not exceed certain limits for peace offenses. 

Mr. Watkins. Would it not be well to put in there the extent of 
that punishment? 

Gen. Crowder. The punishments are of such a light character 
that I doubt if there is any necassity for regulation. It seems to 
me we would encumber the statute a good deal by attempting regu- 

lation. ., . . . i 

The Chairman. That seems to be a very reasonable thing, indeed. 

Gen. Crowder. I have been trying to get some field in which the 
company commander can move without too much restriction in hold¬ 
ing his men up to a standard and having them recognize him as the 
authoritv in that company. 

The Acting Chairman. I think that is a reasonable provision ot 

^Mr. Kahn. Under what circumstances would a crime or offense 
grow out of the same act or omission for which he has received 

disciplinary punishment ? . . _ . . . 

Gen. Crowder. He may, for example, be punished tor roughly 
treating a comrade, which was thought at that time to be a trivial 
matter: it might have been a much more serious affair than the pre¬ 
liminary investigation indicated. Tf tried for the assault, he would 
doubtless want to show that he had been already punished. He may, 
under the new article, do this: but the showing goes only to the 
amount of punishment to be inflicted for the assault. 

We dealt with article 54 of the existing code at Saturday s hear¬ 
ing. A part of it, namely, that part that was administrative, was left 
unprovided for, and I then notified the committee that it had been 
made the subject of a special article. We are here dealing with the 


90 


REVISION OF THE ARTICLES OF WAR. 


case of a command which is on a practice march, say, encamped near 
a farm. Some of the rougher elements of the company disturb the 
farmer in his property rights. They take fuel or foodstuffs or some¬ 
thing of that kind. The farmer complains and furnishes a list of the 
property taken. Article 54 commands every officer commanding un¬ 
der such conditions to keep good order and to the utmost of his 
power redress all abuses or disorders which may be committed by 
any officer or soldier under his command. And then it adds this 
requirement: 

If, upon complaint made to him of officers or soldiers beating or otherwise 
ill-treating any person, disturbing fairs or markets, or committing any kind of 
riot to the discpiieting of the citizens of the United States he refuses or omits 
to see justice done to the offender and reparation made to the party injured 
so far as part of the offender’s pay shall go toward such reparation, he shall be 
dismissed or otherwise punished as a court-martial may direct. 

This new article is to deal with reparation. The old article pro¬ 
vided that the person should be reimbursed, but it provided no pro¬ 
cedure. Now, I have introduced an article here which provides a 
procedure, and T have said in that article: “ Whenever complaint is 
made to any commanding officer.” [Reading from p. 44 of draft.] 

Now comes a part of the procedure which, on first reading, is gen¬ 
erally objected to. 

The Acting Chairman. That is where you make the organization 
responsible ? 

Gen Crowder. That is where we make the organization responsi¬ 
ble if they do not disclose the names of the offenders. That reads: 

Where the offenders can not be ascertained, but the organization or detach¬ 
ment to which they belong is known, stoppages to the amount of damages in¬ 
flicted may be made and assessed equally upon the individual members thereof 
who are shown to have been present with such organization or detachment at 
the time the damages complained of were inflicted. 

ICr. Watkins. That is contrary to the general trend of the law 
not to require a man to become a witness against himself. If he 
should testify lie might incriminate himself, and it would to that ex¬ 
tent be forcing him to testify against himself. 

Gen. Crowder. The same principle is involved here as before the 
Brownsville court of inquiry, where we could not locate the men 
responsible for the shooting up of Brownsville, Tex. 

Mr. Evans. I do not believe we can consider for a moment the 
rights of soldiers on a civil basis. We have got to have order, and 
the discipline has got to be rigid and the administration of punish¬ 
ment quick in order to be effective. 

Gen. Crowder. This is a very useful article. 

Mr. Evans. I think the judge's point is very well taken as a matter 
of law, but that is really only assessing the damages against some 
crowd that has done an act and refuses to throw responsibility upon 
any one person. There is quite a distinction between that and the 
case of the man who pleads the immunity or privilege that he does not 
have to testify against himself. 

Mr. Kahn. There is another little distinction in that matter, I 
think: A soldier is intended to protect property, not to destroy it. 
He is a guardian of property, and when he destroys it- 

Mr. Evans. It is a worse offense, you mean? 

Mr. Kahn. Exactly so. 



REVISION OF THE ARTICLES OF WAR. 


91 


Ihe Acting Chairman. General, lias anv other Government such 
a provision in its articles of war? 

• ^® OWDER * I think this particular provision, assessing loss 
against the command, is peculiar to our own articles. It seems to 
or A lgmated 111 a general order published back in 1868. 

lhe Acting Chairman. Have you had the principle since then? 

(Ten. Crowder. Yes. 

The Acting Chairman. And it works well? 

Gen. Crowder. It works very well. 

Mr. Evans. I do not object to that. 

Gen. Crowder. Article 106 is an attempt to make an article of war 
out or the act of June 18, 1898, section 6, giving authority to civil 
officers to arrest deserters. 

. M r - M atkins. Before we pass that proposition entirely wouldn’t 
it have a more salutary effect to dismiss them from the service than 
to punish them by confining or deducting the amount from their 
compensation? 

Gen. Crowder. W ell, the crime is not one that seems to call for 
expulsion from the service. It is more frequently a frolic among the 
men than a deliberate purpose to destroy property. It occurred down 
here in Galveston, Tex., in 1910, when the command there was march¬ 
ing out on a practice march and encamped near a lake, where a 
nearby resident had a boat. They used the boat for diving purposes, 
finally got to shooting into the boat, and they destroyed it. There 
were several companies there and we could not locate the responsible 
men. The only possible way of reimbursing such a man is to assess 
the value of the boat against the organizations. They all knew who 
it was, but they would not tell. They were not required to tell; but 
this penalty was enforced. 

Mr. Kahn. But they did not demur? 

Gen. Crowder. They could have gotten out of it if they wanted to 
produce testimony. 

Mr. Ivahn. Was there any disposition to avoid payment? 

Gen. Crowder. No; our men are generally willing to get out of it 
on those terms. We had that question of assessment against Troop 
G during the Sioux campaign, when certain men went out and shot 
a steer when the supply of beef was running a little short. They 
happened to shoot a ver} r valuable animal, and the company had to 
pay about $150, I think. It helps to maintain friendly relations 
with the civil community when we use the authority of this article 
to reimburse anybody who has lost. 

There is no change in article 106, except that I have introduced the 
words “ a possession of the United States,” to cover civil officers in 
the Philippines or Porto Rico who may arrest deserters. All of¬ 
ficers of a State, Territory, or District have that authority. 

Mr. Evans. There is no Territory now. 

Gen. Crowder. There is the Territory of Alaska. 

Mr. Kahn. That is not an organized Territory, is it? 

Gen. Crowder. I think it is a Territory within the meaning of 
this statute. It has been held to be a Territory within the meaning 
of the statute giving representation at West Point. 

The Acting Chairman. We granted that cadet to Alaska by a 
special act, didn’t we? 


92 


REVISION OF THE ARTICLES OF WAR. 


Gen. Crowder. No, sir; we rendered an opinion in our office, and 
I think it was made under that decision. 

Mr. Kahn. If it is not a Territory, then it is a District, and the 
word “ District ” is used here. 

Gen. Crowder. We come now to article 107. There is considerable 
new matter in that article. The existing article which it substitutes 
requires a soldier to make good time lost through desertion. In the 
act of May 11, 1908, Congress provided: 

That an enlistment shall not be regarded as complete until the soldier shall 
make good any time lost during an enlistment period by unauthorized absences 
exceeding one day. 

So that as the law now stands time lost through desertion and by 
unauthorized absences exceeding one day must be made good. In the 
pending Army appropriation bill it is further provided: 

That any officer or enlisted man in active service who shall be absent from 
duty on account of disease resulting from his own intemperate use of drugs, 
or alcoholic liquors, or other misconduct, shall not receive pay for the period of 
such absence from any part of the appropriation in this act for the pay of 
officers or enlisted men; the time of absence and the cause thereof to be ascer¬ 
tained under such procedure and regulations as may be prescribed by the 
Secretary of War. 

I have attempted to combine these various legislative provisions 
into a new article. I can see no reason why time lost through illness 
of the character named in the legislation should be counted as a 
part of the enlistment period if it is not to be counted for pay. 

Mr. Kahn. Illness brought on by the soldier’s own indiscretion? 

Gen. Crowder. Yes, sir. 

The article is broader than the legislation enacted by Congress, in 
that the latter requires only a loss of pay, while the article requires 
the time lost through such illness to be made good. Of course, I am 
anticipating that the legislation in the pending Army appropriation 
bill will be enacted. 

Mr. Evans. We are committed; we can not object to it. 

Gen. Crowder. Article 108 relates to separation from the service 
of soldiers. That is a very troublesome subject in Army administra¬ 
tion. We start out with the general principle that nobody has 
authority to rescind a contract of service made between the Govern¬ 
ment and an individual, and when that authority exists it exists by 
express enactment. The first enactment on the subject was the 
fourth article of war, which remained the law from 1806 down to 
1890. It provided that— 

No enlisted mail, duly sworn, shall be discharged from the service without a 
discharge in writing signed by a field officer of the regiment to which he be¬ 
longs, or by the commanding officer when no field officer is present; and no dis¬ 
charge shall be given to any enlisted man before his term of service has ex¬ 
pired, except by order of the President, the Secretary of War, the commanding 
officer of a department, or by sentence of a general court-martial. 

In other words, the statute authorizes three different authorities 
to discharge a soldier prior to the termination of his enlistment 
period: The President, the Secretary of War, and'the commanding 
general of the department. Nobody else could exercise this authority 
until the enlistment contract had expired. Now, by Army regula¬ 
tions, which were certainly of doubtful validity, the Secretary of 
War forbade the commanding general of the department to exercise 


REVISION OF THE ARTICLES OF WAR. 


93 


the authority that Congress had conferred upon him. That was for 
the purpose of keeping the discharges regulated by the central 
authority and to see that discharges by favor were not granted, ex¬ 
cept in a uniform way. 

There has always been a great demand—and a good deal of it 
proceeds from Members of Congress—to get men relieved of the 
obligation of the enlistment contract before their terms of service 
had expired. Finally Congress enacted in 1890 that in time of 
peace the President may, in his discretion and under such rules as 
he may prescribe, permit any enlisted man to purchase his dis¬ 
charge. TV e issued orders under that authority fixing the price of 
a discharge after completion of one year’s service at a certain 
amount, and at lesser amounts for the second and third years, 
diminishing with the period left to serve. 

The demand became very insistent—it has always been insistent— 
for discharge in quite another class of cases—cases of dependency 
of relatives occurring after a man has entered into the enlistment 
contract. 

Mr. Hughes. I expect all of us have had a good many of those 
appeals. 

Gen. Crowder. In February, 1901, Congress passed the second 
piece of legislation, stating that a soldier, after the expiration of 
one year of service, should either of his parents die, leaving the 
other solely dependent upon the soldier for support, could claim his 
discharge as of right. The effect of this legislation is to limit dis¬ 
charge by favor to these two classes of cases. I have taken those 
three statutes—they are widely scattered provisions—and combined 
them into an article of war which states the manner in which a 
soldier may leave the service. I think I have them accurately stated 
in the new article. 

Mr. Evans. One question about the last line: 

Provided, No soldier shall, before the completion of his term of service, be 
discharged by order of the President, the Secretary of War, or any officer, 
unless such discharge be ordered in the interests of the United States. 

What does that mean? 

Gen. Crowder. A discharge by favor to the individual is one 
thing, and a termination of the contract by the President of the 
United States in the interests of the Government is quite another 
thing. 

Mr. Evans. Why don’t you say, “ for the benefit of the service ? ” 

Gen. Crowder. If a soldier is worthless- 

Mr. Kahn. You would not discharge him without honor if he 
had not committed any offense? If he was shiftless and you did 
not care to have him reenlist, you would give him an honorable 
discharge, so long as he had not committed any serious offense? 

Gen. Crowder. Not before his term of enlistment has expired, 
and then he would take his chances for a discharge with good char¬ 
acter, fair, bad, or whatever his classification might be. We do 
discharge men dishonorably for incapacity, the result of their own 
misconduct_a line of intemperate misconduct which does not in¬ 

volve them in any violation of the regulations. 

Mr. Kahn. Would you give him an honorable discharge, or give 
him an honorable discharge with a notation of the discharge—“ not 
liable for reenlistment ” ? 


94 


REVISION OF THE ARTICLES OF WAR, 


Gen. Crowder. We give a discharge “without honor in those 
cases. 

Mr. Anthony. What is that? A bobtail discharge? 

Gen. Crowder. No; a bobtail discharge was a dishonorable dis¬ 
charge; everything was cut off in the way of character, and it was 
called “ bobtailed ” on that account. 

Mr. Anthony. The bobtail discharge is not used any more, is it? 

Gen. Crowder. I have not seen one of those discharges in two or 
three years, and do not know whether they tear off the lower part of 
it or not. I think they have a new blank where that is not necessary. 
We have honorable discharge, dishonorable discharge, and then the 
intermediate, or what is called the “ discharge without honor,” which 
is imposed administratively for the good of the service. 

Mr. Kahn. Does it read on its face, a discharged without honor ” ? 

Gen. Crowder. Yes, sir. 

The Acting Chairman. That does not mean a dishonorable dis¬ 
charge ? 

Gen. Crowder. Oh, no. 

Mr. Anthony. It does not deprive the man of any of his vested 
rights ? 

Gen. Crowder. It deprives him of the right to reenlist. 

Mr. Anthony. It leaves him in a pensionable status? 

Gen. Crowder. I have never had a case of that kind before me. I 
do not know whether it affects the pensionable status or not. I 
rather think it does not, 

Mr. Evans. It certainly ought not. 

Gen. Crowder. Now; this article 108- 

Mr. Kahn. Do you think it necessary in article 108 to repeat the 
preposition “of” in each one of these; say, in line 9, “or by order 
of the President, of the Secretary of War, or of an officer”? 
Wouldn’t it suit your purpose if it read, “ by order of the President, 
the Secretary of War, or an officer having authority under the regu¬ 
lations ”? 

Gen. Crowder. Quite as well; yes. 

Mr. Kaiin. 1 do not think that “ of ” should be repeated there. It 
is not important at all. 

Mr. Watkins. I think it makes it clearer. 

Gen. Crowder. It reads the word “ order ” into it every time. 

Mr. Kahn. I think the language will be more euphonious. 

The Acting Chairman. Is the soldier furnished a copy of the 
Articles of War? 

Gen. Crowder. No. 

The Acting Chairman. Is he given an opportunity to read them? 

Gen. Crowder. They are read to him. They are in the first ser¬ 
geant’s room in two or three forms. He can always have them. 

Article 111 is a repetition of article 114. 

We come now to an article of war which gave me some trouble to 
draft. I shall go over it a little bit in detail, because it is an im¬ 
portant article to the service. It is the question of the probate juris¬ 
diction we have to exercise in a small way when an officer or soldier 
dies in active service. 

Mr. Kahn. You want us to take up the typewritten section? 

Gen. Crowder. The typewritten section, instead of the one that 
was printed. The one that was printed was an effort to draw an 



REVISION OF THE ARTICLES OF WAR. 


95 


article following the District of Columbia statute. It was too com¬ 
plicated, especially for field service, where the article is more often 
applied than elsewhere. I have, therefore, drawn a much simpler 
statute, which I think I can explain. 

1 heie is necessity in the military service for the exercise of a kind 
of summary jurisdiction upon the effects of officers, soldiers, and 
other persons subject to military law; that is, over personal property 
used in the military service. This was attempted in articles 125, 
i26, and 127 of the existing code. They originated back in the British 
code of 1 < <4, and were carried forward in the code of 1775, 1776. and 
finally in the code of 1806, and they survive in the present code in 
the form they had in the code of 1806. 

Iheir defects are: First, that they apply only to officers and 
soldiers of regiments—rather archaic language—and make no pro¬ 
vision for officers and soldiers who do not belong to regiments. 
By somewhat bold construction we apply the article whether or not 
the officer or soldier dying came within the description of the article. 

In the second place, the articles do not cover persons other than 
officers and soldiers, and subject to military law. 

In the third place, the articles devolve the duty of administration, 
in the case of an officer, upon the major of the regiment and. in case of 
the soldier, upon his company commander, quite irrespective of their 
qualifications to do that class of work. I am devolving this duty in 
the new article upon the summary court, the officer of the com¬ 
mand presumably best litted, in the judgment of the commanding 
officer, to perform such duties. 

The fourth defect of the existing articles, and their principal 
one. is that they confer no authority to collect the debts due the 
estates or to pay small perferential claims which always come up 
at such a time. It may be a debt due a laundry or a mess table. 
Neither does the existing law give any authority to collect debts 
due the estate. 

The first effort to draw the article was made with reference to the 
existing statute of the District of Columbia. I am convinced' that 
it is too complicated, and have submitted a simpler one—the type¬ 
written one which you will find pasted over printed article 112. 

It will be noted that should there be no legal representative, 
widow, or next of kin, the accounting is to be made to the War 
Department under the operation of regulations and of the act of 
June 30, 1906. for the settlement of the accounts of deceased officers 
and enlisted men of the Army; the account is certified to the Auditor 
of the War Department for settlement. It follows the provisions 
of said act of 1906 as to distribution. 

The concluding provision of article 112 has been inserted to cover 
cases of inmates of the United States Soldiers’ Home of the District 
of Columbia. Deaths at that institution are of frequent occurrence 
and nearly all the decedents leave a little property. There ought 
to be somebody connected with the Soldier’s Home to take possession 
of that small amount of property and relieve the administration of 
the home of the necessity it is now under of invoking the jurisdiction 
of the probate authorities of the District of Columbia. It is strictly 
an old-soldier proposition, and I have no hesitation in asking that 
this provision be included. 


96 


REVISION OF THE ARTICLES OF WAR. 


Mr. Watkins.AII those seem to be all right, except that with 
regard to having a relative take charge. There might be a contro¬ 
versy between the relatives. I think it would be better to strike 
that out. 

Gen. Crowder. I was merelj 7 looking at the subject in the manner 
in which it had revealed itself to me in actual practice. I have never 
known of any embarrassment on that score. 

Mr. Kahn. There would be a question as to who was the legal 
representative. I take it. from the language of the section, that 
the money could not be turned over until the legal representative 
was found or determined. 

The Acting Chairman. I also see another thing there, Mr. Evans, 
“ The said summary court shall turn over to him all effects not sold.” 
Suppose the mother were the heir of the man; would she be barred 
under the language? 

Mr. Evans. No, sir. In my State we have a curative statute by 
which “he” is “him,” the plural is singular and so on. 

Gen. Crowder. That is pretty nearly common law. isn’t it? 

Mr. Evans. I was wondering, right there, about the language “ a 
member of his family.” As Judge Watkins says to me—my train¬ 
ing in law was in probate law first—a “ member of the family ” is 
very vague. It is my experience that two or three members will set 
up their rights right off, especially as to property. You say you 
have not in your experience had any trouble with that? It must 
be simply because the soldiers die when the members of the family 
are not around. If there were there would be two members of the 
family applying in 1 case out of 15 or 20. In most States they 
have found it necessary to regulate the right to administer according 
to relationship, and to give a certain number of days after which a 
widow may renounce, or the next of kin may renounce, or a creditor. 
Then, again, if there are no next of kin. the creditors should have a 
right to apply. 

Gen. Crowder. I will tell you how it works in practice, Mr. Evans. 
Whenever there is a dispute of that kind the responsible officer re¬ 
sorts to the procedure prescribed by existing regulations and for¬ 
wards everything to the Auditor of the War Department, and the 
auditor distributes it under the statute of 1906. which provides for 
precedence among claimants. 

Mr. Evans. That suggests just the words that I was thinking 
ought to be in here, “shall present to a member of the decedent's 
family, in case no legal representative has appeared.” You have 
it that the commanding officer must turn it over to a member of the 
family. That involves, as Judge Watkins has said, a possible con¬ 
test between members. But also there may be a legal representative 
appointed by a court, and it would seem to me that there ought to 
be some time allowed before the money is actually turned over to 
the member of the family. There is a great deal of difference be¬ 
tween the members of a family. One may be a wife, who is entitled, 
and another may be a cousin, who is not even an heir. 

Gen. Crowder. Of course, the ordinary case is that the member of 
the family is present and in possession. * 

Mr. Evans. I should think it should be some one who is next of 
kin. The member of the family may not even be an heir. 


REVISION OF THE ARTICLES OF WAR. 


97 


Gen. Crowder. Yes ; that is possible. 

* !' . VANS - Ihere is hardly any family that does not extend be- 
yond the next of kin of any one member of it. 

Gen. Crowder. What language could be inserted there, Mr. Evans, 
that would convey your idea ? 

Mr. Kahn. The language on the other side would cover it—“de- 
cedent s widow or legal heirs.” 

Mr. Watkins. Strike out “ member of the family.” 

Gen. Crowder. “ Legal heirs ” would require a military officer to 
know who they are. 

Mr. Evans. Anybody can testify as to kinship. 

Mr. Watkns. I would not substitute anything for “members of 
the family;” just strike that out. 

Mr. Evans. “ Shall permit the legal representative or members of 
the decedent’s family present to take”—after what time? 

Gen. Crowder. Oh, immediately. The intent is that they should 
take possession immediately. 

Mr. Kahn. A soldier has not any creditors to speak of, as a rule. 

Gen. Crowder. He may owe for his laundry. 

Mr. Watkins. He may have an heirloom. He may have souvenirs, 
relics, in which the family takes pride. 

Gen. Crowder. Is there any change of language that could be made 
there, or shall we strike out “ members of the decedent’s family ”? 

Mr. Evans. The legal representative could only be a person with 
letters of administration. Strike out the words “member of the 
decedent’s family ” and insert “ his widow or next of kin present to 
take possession.” I believe that would be all right. 

Gen. Crowder. It would also have to be changed below. 

Mr. Evans. In line 5 strike out the words “ a member of the dece¬ 
dent’s family ” and insert in lieu thereof “ his widow or next of kin 
and in the third line below that strike out the words “ members of the 
family ” and insert in lieu thereof “ widow or next of kin.” 

Gen. Crowder. And further down, following the semicolon, “but 
if in the meantime the legal representative or a member of dece¬ 
dent’s family.” 

Mr. Evans. Strike out “ a member of decedent’s family ” and in¬ 
sert “ his widow or next of kin.” 

Gen. Crowder. That will complete the article, will it not? 

Mr. Evans. Yes, sir. 

Gen. Crowder. Article 113 relates to inquests. That is a new ar¬ 
ticle. Embarrassment has arisen in the past when a death occurred 
on a military reservation through accident, violence, or suspicious 
causes, which elsewhere would require a hearing before a coroner. 
The coroner charged by the local law with this duty has no authority 
on a reservation where the jurisdiction of the United States is exclu¬ 
sive. The main difficulty is in transporting bodies of deceased per¬ 
sons to cemeteries, due to objections of State health authorities 
that the certificate as to the cause of death required by State laws 
is lacking. 

Article 114 extends the authority to administer oaths to the presi¬ 
dent of a general or special court-martial, the president of a court 
of inquiry, of a military board, or any officer designated to take a 

46382—12-7 



98 


REVISION OF THE ARTICLES OF WAR. 


deposition, also to the adjutant of any command. That this is a 
necessary extension of authority will not, I think, be questioned. 

It will be recalled that a previous article makes provision for an 
assistant judge advocate of general courts-martial when one is nec¬ 
essary. New article 115 makes such assistant judge advocate com¬ 
petent to perform in substitution of the regular judge advocate the 
duties of the latter. 

We come now to an important article, and one which is new to 
the code. There are numerous statutes which devolve civil duties 
upon the Army. Three sections of the Revised Statutes devolve 
duties of this character upon the Army in the protection of civil 
rights. Five sections similarly devolve duties upon the Army in 
the protection of Indians. There are two or three enactments which 
permit the Army to be utilized for the preservation of public lands, 
and other provisions of law give the Army duties respecting public 
health, the preservation of neutrality, and, of course, we have to 
bear in mind the extensive employment of the Army in time of riot 
and civil disturbance. 

In the performance of these duties officers of the Army come into 
very close relations, with the civil authorities and with the people, 
and not infrequently are sued in local courts on account of acts done 
by them under the color of office or military statutes. 

Instances of civil suits in State courts of this character are found 
in the case of Capt. John C. Bates, Infantry—now lieutenant gen¬ 
eral, retired—sued in 1877 for seizing liquors about to be' introduced 
into Indian country, the seizure being made under the orders of 
the department commander; in the case of Col. John Brooke—now 
major general, retired—for a similar seizure on the reservation of 
Fort Union, N. Mex.; and there is the recent case of Capt. Bid¬ 
dle, of the Cavalry, sued for executing an order of the post com¬ 
mander to expel stock found trespassing on the military reservation 
of Fort Meade, S. Dak. Many other cases might be cited. 

When any civil suit is commenced in any court of a State against 
r revenue officer o'f the United States, on account of any act done 
under color of his office, he is, by the act of March 3, 1911, given 
the right to transfer the litigation to a United States district court. 
I have taken that legislation and built an article of war upon it, and 
am asking for a corresponding provision in the case of officers and 
enlisted men of the Army that are sued in civil courts of a State 
on account of acts done in the performance of official duty. This 
is what new article 116 is intended to accomplish. It simply para¬ 
phrases the act of Congress of March 3, 1911. 

It seems to me that the request is a reasonable one. The author¬ 
ity of an officer or soldier or other person in the military service 
for acts done in his official capacity is measured by the Federal law, 
and it seems to me just as well as expedient that when his action in 
line of duty or under color of his office and military status is brought 
in question by means of a civil suit there should be a right to trans¬ 
fer to a Federal court. 

Mr. Watkins. I think that would be proper if you would let it 
be shown conclusively that it was for his acts performed in his mili¬ 
tary capacity, but if he should go out in his own individual capac¬ 
ity, he ought to be responsible. 


REVISION OF THE ARTICLES OF WAR. 


99 


Gen. Crowder. I think the new article is clear in that regard. I 
ha\e said on account of any act done under color of his office or 
status or in respect to which he claims any right, title, or authority 
under any law of the United States respecting the military forces or 
under the law of war.” Is not that sufficient ? 

. ^ r *. a tkins. I think if he shows clearly that it is in the line of 
his military duty, that would be proper. 

Gen. Crowder. Now, we come to article 118, rank and precedence 
among regulars, militia, and volunteers. We have been in consulta ¬ 
tion in the War Department in the past three or four weeks with the 
national militia board and other representatives of the National 
Guard. 

Mr. Kahn. Pardon me; you have passed over section 117. 

Gen. Crowder. Yes; that is simply a reenactment of article 99 and 
two acts of Congress; one, section 1299, Revised Statutes, and the 
other, the act of January 19, 1911. They are consolidated into article 
117 with no changes. 

Mr. Evans. Under this article 117, would the President of the 
United States be authorized to discharge an adjutant general? 

Gen. Crowder. No, sir. There is no change from existing law in 
that article at all. 

Before proceeding to discuss article 118, I would like to invite 
your attention to articles 124 and 122 on the next page. The two 
articles will have to be considered together. 

Mr. Evans. Now,-General, I do not want to take up too much time, 
but this article you have put in says, “ and in time of peace no officer 
shall be dismissed except in pursuance of the sentence of a court- 
martial.” That takes away from the President the right to dismiss 
in time of peace. 

Gen. Crowder. The old law said, “ and no officer in the military or 
naval service shall in time of peace be dismissed from service except 
upon and in pursuance of a court-martial to that effect or in commu¬ 
tation thereof.” 

Mr. Evans. Then he has no right to dismiss in time of peace ? 

Gen. Crowder. No. He does not do it; he never has done it since 
the passage of this law. 

Mr. Evans. Did he not do it in the Ainsworth case ? 

Gen. Crowder. No; he relieved Gen. Ainsworth from duty, and 
subsequently the general applied for retirement. 

Taking up articles 122 and 124 of the existing code, you will ob¬ 
serve that they prescribe two opposed rules of precedence. Under 
article 122, on “marches, guards, or in quarters”—rather archaic 
language, but intended to be descriptive of all classes of duty—all 
officers of the Army, Marine Corps, militia, or volunteers are placed 
upon an equality with respect to rank and precedence, and the senior 
line officers in point of commission command the whole. Under 
article 124, on the preceding page, it is provided that on “ detach¬ 
ments, courts-martial, and other duty,” the regular officer shall rank 
the militia officer, and the militia officer shall rank the volunteer in 
the same grade, irrespective of dates of commission. So that we 
have one rule for marches, guards, or in quarters, and another for 
detachments, courts-martial, and other duties. The two articles are 
in conflict unless vou consider detachments, courts-martial, and other 


100 


REVISION OF THE ARTICLES OF WAR. 


duty as not embracing anything embraced in marches, guards, or 
quarters. 

Now, to get rid of that conflict in the statute laws there have been 
several conferences with National Guard officers interested in the 
pending militia-pay bill, and they are agreed now upon a certain 
phraseology which I have incorporated in this article, with one 
exception, which I will proceed to state. In 1862 embarrassment 
arose in assigning the command of our field armies, and Congress 
passed a resolution, April 4 of that year, which provided that “ when¬ 
ever military operations may require the presence of two or more offi¬ 
cers of the same grade in the same field or department the President 
may assign command of the forces in such field or department with¬ 
out regard to seniority of rank.” 

That legislation worked well during the Civil War period, and I 
have prepared legislation to be incorporated in the new articles of 
war, or in some other military legislation, in substitution of the rule 
which is prescribed by these articles, 124 and 122, which I have read. 
At the session which was held to-day it was agreed to insert in the 
pending militia-pay bill which is before this committee, I believe, 
for its consideration a provision like this [reading] : 

When the Organized Militia in service of the United States is employed in 
conjunction with the regular or volunteer forces of the United States, and 
military operations require the presence of two or more officers of the same 
grade in the same field, department, or command, or of organizations thereof, 
the President may assign the command of the forces of such field, ^department, 
or command, or of organizations thereof, without regard to seniority in the 
same grade of rank. 

Following this language the provisions of new article 118 in this 
project. 

Mr. Watkins. What does that mean ? 

Gen. Crowder. It means, among other things, that if you have 
three major generals in the same field operating together, the. Presi¬ 
dent may designate the junior of them, if he so chooses, to command 
over the other two. 

The new article incorporating the foregoing language would then 
read as follows: 

Provided, That in the absence of such assignment by the President officers of 
the same grade shall rank and have precedence in the following order, without 
regard to date of rank or commission as between officers of different classes, 
viz: First, officers of the Regular Army and officers of the Marine Corps de¬ 
tached for service with the Army by order of the President; second, officers of 
the Organized Militia transferred to the Army of the United States or called 
into the service of the United States; third, officers of the volunteer forces: 
Provided further, That officers of the Regular Army holding commissions in the 
Organized Militia in the service of the United States, as hereinbefore provided, 
or in the volunteer forces, shall rank and have precedence under said commis¬ 
sions as if they were commissioned in the Regular Army; but the rank of 
officers of the Regular Army under their commissions in the Organized Militia 
shall not, for the purpose of this section, be held to antedate their formal entry 
into the service of the United States under said commissions. 

I talked this article over with your chairman, Mr. Hay, and he 
said he thought there were some protests on the part of the National 
Guard officers against this legislation. I was talking this afternoon 
with a representative of the protestants, and he says that his objec¬ 
tion to the legislation is not to its merits but to its place in the militia 
pay bill. He would have no objection to it as a part of these articles. 


REVISION OF THE ARTICLES OF WAR. 101 

The Acting Chairman. Suppose four officers should come to¬ 
gether—we will say a major general of the Marine Corps, a major 
general of the Organized Militia, a major general of the volunteer 
forces, and a brigadier general of the Regular Army. 

Gen. Crowder. They would all command the brigadier general, and 
this now article would not give the President any authoritv to 
change that. 

I he Acting Chairman. Say there were four divisions assembled 
making one grand army, and all their commanders were major gen¬ 
erals except the Regular Army officer, and he a brigadier. Naturally 
and under ordinary circumstances the senior major general would 
command, whether he was Volunteer, Organized Militia, or Marine 
Corps officer. 

Gen. Crowder. Yes; that is the rule to-day; but if this legislation 
passes the senior militia major general would command the volunteer 
in the same grade irrespective of rank, and both of them would com¬ 
mand the Regular Army officer, because he was in the next lower 
grade. This article affects rank within the grade, but it does not 
affect grades. For instance, it will not be within the power of the 
President under this legislation to place the brigadier general of the 
Regular Army in command of the major general. 

The Acting Chairman. Suppose four major generals come to* 
gether and the Regular Army officer were the junior, would he com¬ 
mand the other two ? 

Gen. Croavder. Yes. 

Mr. Kahn. Under this section he undoubtedly would. 

Gen. Crowder. There appears to be no objection to that provision. 

Mr. Evans. What do we train him for—what are we spending 
money on the Army for if we do not get superior men ? 

The Acting Chairman. I have in mind one or two major generals 
that were never Regular Army officers, who, by results achieved in 
the field in the handling of armies, demonstrated rather superior 
qualities- 

Mr. Evans. Oh, in the last war. But those two men in that picture 
[indicating a painting of Gens. Grant and Lee] are both West Point 
men. 

Mr. Kahn. But in the Spanish-American War there were several 
brigadier generals created. 

Mr. Evans. If we are going to make laws here, if we are not going 
to put the trained men in command, we had better stop training 
them; that is all. 

The Acting Chairman. What rank did Forrest get as a cavalry 
officer, major general? 

Gen. Crowder. Yes; I think, perhaps, he got to be a lieutenant 
general before the close of the war. They had many lieutenant gen¬ 
erals on that side. 

I would like to ask whether or not that article can be passed in the 
form in which T have the preliminary part, saying that when the 
Organized Militia is called into the service of the United States and 
employed in conjunction with the regular or volunteer forces of the 
United States in military operations which require the presence of 
two or more officers, the President may assign the command, etc. ? 

Mr. Kahn. Will you have a few typewritten copies of that pre¬ 
liminary language made? 


102 


REVISION OF THE ARTICLES OF WAR. 


Gen. Crowder. Yes. 

Mr. Kahn. If it is not difficult for you, I think it would be well 
for you to have a copy made for every member of the committee. 
In considering the bill in executive session we will want to have the 
language before us. 

Gen. Crowder. Now, we have a second related article, 119—com¬ 
mand when different corps or commands happen to join. [Reading:] 

When different corps or commands of the military forces of the United 
States happen to join or do duty together, the officer highest in rank of the 
line of the Regular Army, Marine Corps, Organized Militia, or Volunteers 
there on duty shall, subject to the provisions of the preceding article, command 
the whole and give orders for what is needful in the service unless otherwise 
directed by the President. 

That straightens out and harmonizes the two articles of the exist¬ 
ing code. 

I have omitted to call your attention to one article which should 
be 114Y i omitted to transfer one section of the Revised Statutes, 
which was in the nature of an article of Avar to this revision. The 
section reads like this: 

The judge advocate of a military court shall have power to appoint a re¬ 
porter, who shall record the proceedings of and testimony taken before such 
court, and may set dow r n the case in the first instance in shorthand. The re¬ 
porter shall, before entering upon his duties, be sworn or affirmed faithfully 
to perform the same. (Sec. 1203, R. S.) 

While this section of the law gives the authority to the judge advo¬ 
cate of a court to employ a reporter. Army Regulations have been 
issued denying him the exercise of that authority, except with the 
sanction of the authority convening the court. This Avas an attempt 
upon the part of the War Department to control and limit expendi¬ 
tures for reporters. The regulation Avas a useful one, but the grant 
of authority in the statute Avas not restricted. I have written the 
limitation into the neAV article in order that it may affirmatively ap¬ 
pear that the judge advocate has not this authority except Avith the 
approval of the conA f ening authority. 

It will be noticed that the new article is broader than the section 
of the Revised Statutes upon which it is based, in that it provides 
for the employment of an interpreter as well as a reporter. I ask 
to have this neAv article inserted as neAV article 114J. 

Mr. Kahn. Would you have any objection to inserting it as 114, 
paragraph a or b, or to number it il5 and change the numbers of all 
the subsequent articles? I do not like to begin a new code by having 

Gen. Croavder. It would look better as paragraph 2 of article 114, 
which is headed “Authority to administer oaths.” We could just 
strike out that heading and make it read “Administration of oaths— 
Employment of reporters and interpreters.” Then this would come 
in as paragraph 2 of that article. It fits in there very Avell. 

Mr. Evans. The balance is nothing but the repealing acts. 

Gen. Croavder. I am sorry to protract the meeting, but I have a 
very important matter to present to the committee. I have Mr. 
Hays’s sanction, I believe, for presenting it. 

The general subject of discipline of the Army includes not only 
these articles of war, but it includes our prison statutes. There has 
been considerable agitation for a number of years, in the service and 


REVISION OF THE ARTICLES OF WAR. 


103 


cut of it, about the treatment of military prisoners. The discussion 
has been directed more particularly toward the treatment of de¬ 
serters. There is one class of officers who adhere to the view that 
desertion should be regarded as a felony and the deserter rated a 
felon, who is appropriately punished with penal servitude. A few 
years back we used to brand the deserter and tattoo his body, but 
that punishment was finally prohibited by Congress, along with 
flogging. We still adhere to the idea of penal servitude. In 1873 
Congress passed a law to establish a military prison. The first draft 
of the law provided for its establishment at Rock Island. The law 
was subsequently amended to make the place Fort Leavenworth. 
That statute was one of the earliest prison statutes of the United 
States. It is a severe statute. 

As a result of this agitation, I was requested to consider a change 
in the treatment of the military prisoners, but it was a matter about 
which there was a grave difference of opinion, and I opposed the 
change for several months until I could make a thorough study of 
the subject. I finally asked for an order to proceed to Fort Leaven¬ 
worth and make an investigation of that prison. I found 940 men 
in confinement there. They had the appearance of boys. Upon in¬ 
quiry I ascertain that their average age at commitment was about 23 
years. With the aid of the prison officials I effected a classification 
of the inmates. I found 71 per cent were there for purely military 
offenses—by far the larger number of these for desertion and fraud¬ 
ulent enlistment. Associated with those crimes were the offenses of 
absence without leave, disobedience of orders, and kindred offenses, 
where a man had fallen short in the discipline of the Army—667 out 
of the 940 were in there for purely military offenses. One hundred 
and ninety-seven were in there for military offenses and common-law 
and statutory crimes together—but by common-law and statutory 
crimes I want you to understand that I include misdemeanors. Many 
of the offenses were trivial, but still of a civil character, like larceny 
of small amounts. But 78, I think, were in there for serious com¬ 
mon-law and statutory crimes. 

When I had finished my investigation at the prison I went over 
to the United States penitentiary located on the same reservation, 
and I saw the large number of inmates of that institution. They 
were men of more advanced years, grizzled veteran criminals, many 
of them, and had the criminal look. Yet our young ex-soldiers at 
Leavenworth were wearing the same kind of prison garb, conform¬ 
ing to the same prison regime—hair close cropped, numbers on their 
backs and legs, carrying their arms folded in the presence of authori¬ 
ties, undergoing the same penal servitude as at the penitentiary. 

I came to the conclusion that that system was fundamentally wrong, 
but that before we could apply any remedy it was necessary to segre¬ 
gate our offenders. I made recommendation that all the military 
offenders be sent to Leavenworth and that all of the common-law 
and statutory offenders be sent to Alcatraz, the branch prison at 
San Francisco, and that then we consider the question of what regime 
should be maintained at these two places. I submitted quite a 
lengthy report, which occupies some 10 pages of the Chief of Staff’s 
last annaual report. I ask that it be incorporated as an apendix to 
the hearings before this committee. It concludes with five recom¬ 
mendations, to carry out which requires legislation I am now about 


104 


REVISION OF THE ARTICLES OF WAR. 


to bring to your attention. This legislation, which I now offer, is a 
substitute for chapter 6, title 14, of the Revised Statutes of the United 
States. I ask that it be inserted as section 2 of this act. 

The result of enacting legislation of this character will be to estab¬ 
lish the system of detention barracks of England. For a long time 
they treated desertion as a felony and the deserter as a felon. They 
have abandoned this policy, which had always been a failure, and 
resorted to these detention barracks with the idea of reforming these 
men, and they have made a great success of it. It is to be admitted 
that this will be a radical change of policy for us, this passing from 
penal servitude to detention barracks with the idea of saving these 
men to the colors. 

Mr. Watkins. That applies to time of peace, I suppose. 

Gen. Crowder. Yes. 

Mr. IV atkins. So you only have two prisons now ? 

Gen. Crowder. We have three, counting Castle William, in Xew 
York Harbor. 

Mr. Watkins. Then the prisoner has to be conveyed there all the 
way at the expense of the Government? 

Gen. Crowder. Yes, sir; that has been the rule for some time. 

The Acting Chairman. General, how would you arrange it in the 
Philippines, for example? How would you keep your goats separate 
from vour sheep where you would have only one prison? 

Gen. Crowder. We have very ample guardhouses that are prac¬ 
tically prisons. 

The Acting Chairman. And you make those camps of detention? 

Gen. Crowder. They can be so used. 

Tn England, instead of a 9-hour day—which is the usual prison 
day—they have made it a 10-hour day at the detention barracks. 
They keep the men busy a good deal of the time at military instruc¬ 
tion, and they are sending them back to their regiments from which 
they deserted better shots, knowing how to dig intrenchments, and in 
many other important regards better instructed than the men remain¬ 
ing with the colors. The company commanders of the English Army 
are reported as glad to have these men come back. 

Mr. Kahn. There is one little thing that the general can prob¬ 
ably help the committee out on, and that is these repealed sections. 
It might be well for him to draw up just a little statement of what 
these sections are. 

Gen. Crowder. I think it is due the committee to state that Mr. 
Hay, when we went over these, thought I had made a mistake in 
expunging the article which says, “ It is earnestly recommended 
to all officers and soldiers diligently to attend divine service.” 

Mr. Evan. We might leave out the part about the forfeiture. 

Gen. Crowder. Here is another one that I left out: 

Any officer who uses any profane oath or execration shall, for each offense, 
forfeit and pay one dollar. Any soldier who so offends shall incur the penalties 
provided in the preceding article. 

Mr. Kahn. I do not think that the use of profane or irreligious 
language is as prevalent now as it was when these Articles of War 
were first adopted. I do not think it is necessary in our day to keep 
those articles in. 

Gen. Crowder. I will, with your permission, submit for the con¬ 
sideration of the committee as a part of the argument for a revision 


REVISION OF THE ARTICLES OF WAR. 


105 


of our prison statute (1) an extract copy of the prison report re¬ 
ferred to in my statement; (2) an extract copy of the Inspector 
General’s report on the English detention barracks. I submit, also, 
an analytical table showing the origin of each of our existing ar¬ 
ticles of war, and request that all these documents be printed a? 
appendices. 


Appendix A. 

[Extract of report of Judge Advocate General on military prison.] 

C hange of Administration of the Military Prison from a Penal Institution 

to a Military Reformatory. 

It does not admit of question, I think, that the laws applicable to the military 
prison require it to he administered as a penal institution. As pointed out in 
my former report, they follow closely the legislation of the States and the 
later legislation of the United States for the establishment and maintenance 
of penitentiaries. This is especially evident when the provisions embodying 
the requirements for employment of inmates at daily hard labor and in the 
trades are considered. In some respects the laws applicable to the prison are 
less humane than later legislation of the United States creating penitentiaries. 
For example, the provisions of the act of March 3, 1890 (2t> Stat., 839), that 
in the construction of prison buildings there shall be such an arrangement 
of cells and yard space that prisoners under 20 years of age shall not in any 
way be associated with prisoners above that age, and that the management 
of the class under 20 years of age shall be, as far as possible, reformatory, is 
not found in the laws relating to the military prison. 

The regulations adopted from time to time for the government of the military 
prison and its inmates (editions of 1877, 1883, 1888, 1890, and 1910) shows that 
the War Department has uniformly interpreted the law as requiring the 
prison to be administered as a penal institution. In the five editions of said 
prison regulations it has been provided that prisoners should be clad in prison 
dress, wear their hair close cropped, with face clean shaven, be designate! by 
numbers, and employed at the kind of hard labor at which convicts confined 
in civil prisons and penitentiaries are customarily employed. While in the 
several editions of prison regulations in force down to 1895 the inmates of the 
prison were uniformly designated as “ prisoners,” in the present edition of the 
regulations the term “convict” is uniformly used. 

The department has uniformly administered the prison as a penal institution. 
This is made to appear from the present employment of prisoners confined 
therein, which does not differ from past employment, except in so far as their 
labor is diverted to the work of new prison construction, and which the com¬ 
mandant states as follows: 

“ 1. Domestic labor .—This includes orderlies, messengers, clerks, barbers, 
cooks, bakers, waiters, hospital attendants; and tailors, shoemakers, harness 
makers, blacksmiths, electricians, tinners, carpenters, wheelwrights, carpet 
weavers, steam fitters, etc., for repair purposes only; laundrymen, librarians, 
warehouse laborers, teamsters, butchers, printers; total, 250. 

“ 2. Construction work on new prison and the shops and industries in con¬ 
nection therewith; total, 450. 

“3. Outside work in connection with the construction of roads, the opera¬ 
tion of the terminal railway, the care and preservation of the forest, the care 
of the reservation and prison farm; total, 240. (This number is far below 
the daily requirements and does not meet the demands.)” 

Upon the theory that the prison will continue to be administered as a penal 
institution after the completion of prison construction, the commandant recom¬ 
mends that they be employed as follows: 

“1. Domestic labor .—This includes orderlies, messengers, clerks, barbers, 
cooks, bakers, waiters, hospital attendants; and tailors, shoemakers, harness 
makers, blacksmiths, electricians, tinners, carpenters, wheelwrights, carpet 
weavers, steam fitters, etc., for repair purposes only; laundrymen, librarians, 
warehouse laborers, teamsters, butchers, printers; total, 250. 



106 


REVISION OF THE ARTICLES OF AVAR. 


“2. Operation of shops inside the prison .—In the operation of the shops such 
work would he recommended as would be least liable to cause interference from 
outside labor, as follows: Making shoes for the use of all prisoners in the 
Army; making harness for the use of the Army; making brooms for the use of 
the Army (a large part of the broom corn can be raised on the prison farm) ; 
making tinware and stove pans, etc., for the use of the Army; also galvanized- 
iron buckets; making clothing for all prisoners in the Army, especially civilian 
suits for discharged prisoners; repair of wheel transportation; laundry work; 
total, 250. This number depends, of course, upon the amount of work of this 
class that is given the prison to do and can be expanded indefinitely. 

“3. Outside work .— (a) The operation of the prison farm: Between 700 and 
800 acres of land are now available for farm purposes; this will have to be 
diked and the diking will have to be of the very best; the river bottoms will 
have to be protected; it appears to be possible to do this and have an SOO-acre 
farm in the bottoms; 200 additional acres could be secured on the reservation 
on the northwest side without interference with any military operations; a 
1,000-acre farm, using a large part of it as a truck garden, would give employ¬ 
ment to a large number of convicts, (h) The operation of a dairy for the use 
of the prison, (c) The repair and maintenance of post roads and the con¬ 
struction of reservation roads; approximately 12 miles of rock road are to 
be built, (el) Grading; the number of hills to be removed and the amount 
of yardage is very great, (c) Drainage and construction of culverts and 
bridges; this work requires a large amount of labor. (/) Care of the forest 
and the conversion of waste portions of the forest into park land for use of 
troops in maneuvers, (g) Crematory and disposal of wastes; should the crema¬ 
tory be removed from its present location, which appears to be inevitable, 
the construction and maintenance of it should be turned over to the prison. 
( h) Operation and repair of the terminal railway system; the handling of all 
freight, coal, and forage in connection with the operation of the railway system. 
O') Operation of the rock quarries, crushers, limekiln, brick plant, concrete- 
block machines in connection with such work at the prison and post as may be 
authorized by the Quartermaster General. ( j ) Installation of a water supply 
for the prison and post. ( k ) Operation of an electric light and power plant 
for the prison and post. (/) Operation of an ice and refrigerating plant for the 
prison and the post.” 

Because of the proximity of the military prison to the large and important 
post of Fort Leavenworth, and the extensive and urgent demands for labor 
upon the post reservation indicated above, it is probably true that no similar 
institution of the United States or of any State or Territory is in such a favor¬ 
able situation for the utilization for public purposes of free prison labor. The 
extensive employment of its inmates at daily hard labor on the much-needed 
and urgent improvements of the military reservation proper, the conservation 
of the forests, and the building of roads, for which contract labor would other¬ 
wise be necessarily employed, would result in very obvious economies to the 
Government: while the employment of the prisoners on the large prison farm 
(about 900 acres) in the raising of food products and in the shops of the prison 
at trades in the manufacture of articles for use of prison and prisoners con¬ 
fined there and at posts would be a long step in the direction of making the 
prison self-sustaining. The argument of economy is thus seen to be excep¬ 
tionally strong,, and, in connection with the opportunity the work outlined 
above affords for the training of prisoners in civil employment and graduating 
them back into civil pursuits under conditions which would put them in the 
way of establishing themselves in civil life upon their release from the military 
prison ; constitutes the most persuasive argument that can be urged, I think, iii 
favor of continuing the administration of the military prison as a penal 
institution. 

I am prepared to concede to this argument controlling effect as to the inmates 
of the prison convicted of common-law and statutory felonies alone. These 
belong to the regular criminal class, and their punishment should conform to 
what is prescribed by law for this class of prisoners undergoing punishment in 
our United States, State, and Territorial prisons; but I do not think it should 
be regarded as decisive of the more important questions presented, viz: Should 
soldiers convicted of purely military offenses, committed in time of peace, 
be subject to ignominious penal servitude similar to that inflicted upon common- 
law and statutory felons? Preliminary to a discussion of this question, I invite 


REVISION OF THE ARTICLES OF WAR. 


107 


th e following classification of prisoners serving sentence at the 
militarj prison, Fort Leavenworth, at the time of my inspection: 


Table No. 1 . Prisoners convicted of 'military crimes only. 1 

Of desertion only__ * 

Of desertion and fraudulent enlistment only_104 

Of desertion and other military crimes other than fraudulent enlistment.. 56 

Ot deseition, fraudulent enlistment, and other military crimes_ 12 

Jjulitai^ offenses, not including desertion and fraudulent enlistment_ 0 

Of fraudulent enlistment only_ 4 n 


Total_ ftor- 

OO i 

Table No. 2 . Pi isoners convicted of military crimes in connection with common- 

law and statutory crimes. 


Of desertion and common-law statutory crimes not military_ 75 

Of desertion, fraudulent enlistment, and common-law and statutory crimes 

not military_ 10 

Of desertion, fraudulent enlistment, other military crimes, and common-law 

and statutory crimes not military_ 12 

Of desertion and other military crimes, not including fraudulent enlistment, 

and common-law and statutory crimes_ 4 S 

Of military crimes, not including desertion and fraudulent enlistment, and 

common-law and statutory crimes_ 46 . 

Of fraudulent enlistment, other military crimes, not including fraudulent 
enlistment, and common-law and statutory crimes_ 4 


Total 


195 


Table No. 3. 


Number of prisoners convicted of common-law and statutory crimes only.. 78 

Summary. 

Prisoners convicted of military crimes only___667 

Prisoners convicted of military crimes in connection with common-law and 

statutory crimes_195 

Prisoners convicted of common-law and statutory crimes only_ 78 

Grand total_'_940 


Table No. 4.— Desertions. 



Number. 

Average age at enlistment. 

First, year nf enlistment .. . 

431 

23 years 5 months 28 days. 

23 years 2 months. 

22 years 8 months 16 days. 

26 years 1 month 25 davs. 

Second year of enlistment. 

210 

Third vear nf enlistment . 

34 

Seennd enlistment period . 

59 

Third enlistment period . 

12 

29 years 10 months 4 days. 

32 years 7 months 9 davs. 

Fourth enlistment period . 

5 

Fif|h enlistment period . 

2 

39 years 11 months. 





The data for the Pacific branch of the United States military prison at Alca¬ 
traz Island, Gal., if assembled, would probably show similar percentage strength 
of the several classes of prisoners confined in said branch. 

The foregoing classification is not as complete as it is desirable that it should 
be, in that it fails to distinguish between civil felonies and misdemeanors. It 
is doubtless true that a large majority of the prisoners listed as common-law 
and statutory offenders have been convicted of misdemeanors only, and that 
therefore only a very small percentage of the inmates of the military prison 
belong to the regular criminal class. 

It will be noted that the average age at enlistment of prisoners serving sen¬ 
tences for desertion is about 23 years. I did not ascertain the average age at 


i Slight variances in lotals appear in these tables which do not affect the argument based upon them. 







































108 


REVISION OF THE ARTICLES OF WAR. 


enlistment of other classes of offenders, but it is presumably about the same 
as for deserters. The average age of prisoners at the time of my inspection 
may be safely estimated at between 25 and 2G years. The contrast in respect 
of age between them and convicts of the United States penitentiary located on 
the same military reservation, which I visited, is most marked, the latter being 
in appearance a much older class of men. In prison dress and in the methods 
of treatment and daily employment of inmates there is no substantial difference 
between the two institutions, and the inmates of the prison are undergoing 
penal servitude of the same character as inmates of the penitentiary, with the 
additional ignominy in case of deserters of loss of citizenship rights, of rights 
to become citizens, and the right to hold office of trust or profit under the 
United States. 

Recurring now to Tables 1, 2, and 3, we find that of the 940 prisoners under¬ 
going sentence at the military prison at the time of my inspection, 667—approxi¬ 
mately 71 per cent—were convicted of purely military offenses. If we add to 
these those convicted of purely military offenses in connection with common- 
law and statutory offenses of the grade of misdemeanor, ordinarily punished 
by light jail sentences, we shall have a total of approximately 90 per cent of 
the inmates of the prison, by far the greater number deserters, who may be 
said not to belong to the regular criminal class, but who are undergoing the 
same kind of penal servitude as felons confined in the United States peniten¬ 
tiary located on the same reservation. The question whether penal servitude 
is a proper punishment for them is thus seen to turn mainly on what is a 
proper punishment for desertion in time of peace. 

Perhaps there is no other single subject connected with the administration 
of the military establishment which has received more earnest attention by 
the military authorities than this subject of desertion, its causes, and its proper 
punishment. Annual reports, service journals, and the public press have 
teemed with its discussion. It may be said also that there is no other single 
subject connected with Army administration in respect of which such diverse 
views have been expressed. Systematic efforts have been made to ameliorate 
the condition of the soldier in respect of his living, dress, enjoyments, comfort, 
and contentment as a means of reducing desertion rates. The Inspector Gen¬ 
eral, in his report of 1905, summarizes the efforts of the Government in this 
regard as follows: 

“ It has constructed for him barracks luxurious in their appointments com¬ 
pared to the housing of the armies of other civilized countries throughout the 
world; it has provided in these barracks air space in dimension equal to the 
demands dictated by the best scientific thought; it has given him spring beds, 
mattresses, pillows, sheets, and pillow cases; it has provided him with toilets 
and baths of the most modern manufacture, and much superior in general ap¬ 
pearance and effect to similar necessities enjoyed by people in middle life; it 
has provided spacious reading rooms, supplied with newspapers and books cal¬ 
culated to cater to the soldier’s taste; it has bettered the amount and quality 
of his clothing; it is to-day supplying him with the largest variety and best 
quality of food that is given to any Army; and at many of the large posts it 
has provided magnificent exchange buildings, not a few of which have swim¬ 
ming tanks and gymnasiums thoroughly equipped for athletic exercises. It has 
made the demands of discipline and authority over the soldier, in conformity 
with the spirit of the age, mild compared to what it was 20 years ago; it sends 
the uneducated soldier to school and gives the partially educated every ad¬ 
vantage of an extended education; it has provided outdoor amusements for him 
in the way of athletic games; and it has, in fact, accomplished everything to 
make him contented and to cause him to live out his enlistment, with one 
exception—it has failed to provide an adequate punishment for the crime of 
desertion. 

“Nine-tenths of the soldiers who desert from the Army of the United States 
have no real cause for the act.” 

But the efforts of the Government have not been limited to what is outlined 
in the foregoing report of the Inspector General. We have tried the additional 
expedients of long-term and short-term enlistments, bounty for reenlistment, 
retained pay and detained pay, forfeited to the Government by desertion, dis¬ 
charge by purchase, and, finally, increased pay—all, except discharge by pur¬ 
chase, without appreciable deterrent effect upon the commission of the offense 
•of desertion. If, as claimed by the Inspector General, we have failed to find 
adequate punishment for desertion, it is not because we have not run the 
gamut in this regard; for we tried the ignominious punishment of branding and 
tattooing the deserter, the wearing of ball and chain, and long sentences of 



REVISION OF THE ARTICLES OF WAR. 


109 


S!iiL S( i' itUde ' have a ^ so ^'i°d the expedient of recognizing different 
grades of criminality m desertion, distinguishing between the recruit led off 

by F I ™l” i ": 0 , f’n h . 0mesi , ck “ ess ' Ignorance, and the old soldier 


of ti e 
of the 
a mili- 
peace, and 
look upon it 


any 

not 


i i i 7 ~ o - v '^» ,iuu tnu suiuier who commits the 

a * with full knowledge and deliberation, giving to the former a verv short 
erm of imprisonment and frequent restoration to dutyT and pres^r Jin? as to 
the latter the long sentence of penal servitude. In 190S we abandoned S fhe at 
teinpt to distinguish between the recruit and the old soldier i~ect “ this 

Jisfem t 0De ln,,1 ‘ S l*i* lent fo1 ' insertion, only to return to the prior 

f cni 111 ^ll. lll;lt 110110 of these expedients lias been attended with results 
^’atistactory to the department tends directly to support the view 

yeai^of^OOS that . A(ljutaut General of Uie Army in his report for the fiscal 

“ The Principal cause of the evils in question lies deeper than anv 
causes commonly assigned for them, and is beyond the reach of 
measures proposed. Our people, although aggressive enough, are 
tary people. They have little real interest in the Army in time of 
from the earliest days of the Republic have been accustomed to 
as a more or less unnecessary institution that may he pared down with safety 
whenever a demand for retrenchment of public expenses arises. Enlistment 
in tin 1 Aimj in time of peace is not uncommonly regarded as evidence of worths 
lessness on the part of the recruit, and desertion in such a time is generally 
looked upon as nothing more culpable than the breach of a civil contract for 
service. The deserter suffers little or no loss of caste by reason of his offense, 
and is seldom without friends and sympathizers to shield him from arrest and 
to intercede in liis behalf in the comparatively rare event of his falling into 
the hands of the military authorities. 

It is safe to predict that desertion from the Army will continue to he ex¬ 
cessive until there shall have been a radical change of public sentiment toward 
the Army and until the deserter shall come to he regarded as the criminal that 
he is, to he ostracized and hunted down as relentlessly as any other trans¬ 
gressor of the laws. There is no reason to look for such a change of sentiment 
in the near future, and there are some who believe that the change will never 
come until our people shall have learned through national disaster and humili¬ 
ation, that the effective maintenance of an Army of professional soldiers is 
absolutely essential to the preservation of the national honor and life, and 
that the trained and disciplined troops of a modern enemy can not he with¬ 
stood by hastily organized armies of untrained or half-trained civilians.” 

I concur in the view here forcefully expressed that the main obstacle encoun¬ 
tered by the military authorities in their efforts to reduce desertion is found 
in the attitude of the people toward this offense, 
we have to reckon in the enforcement of any law 
and never has associated moral turpitude with 
For this reason we do not have and never have had the cooperation and aid of 
public sentiment in the execution of our policy of treating desertion as a felony 
and punishing the deserter as a felon. I concur further in the view intimated 
above that this state of feeling is an outgrowth of our military policy to rely 
upon a volunteer army rather than upon an army of professional soldiers, and 
that the sentiment will continue so long as that policy continues—that is, for 
the indefinite future. It must, I think, be taken into account in determining 
our policy in dealing with the offense. 

But in the past three years marked success has been achieved in reducing 
desertion rates in face of this adverse public sentiment by the vigorous cam¬ 
paign for the apprehension and punishment of deserters inaugurated by The 
Adjutant General’s Office. The system of apprehension is fully explained in 
the Annual Reports of The Adjutant General for the fiscal years 1909 and 1910. 
It involves telegraphic notice to The Adjutant General’s Office of every deser¬ 
tion, the preparation and distribution of desertion circulars, containing per¬ 
sonal descriptions and reproductions of photographs of deserters, with an 
announcement of rewards payable for their apprehension and delivery. It 
appears that about 4,000 copies of such desertion circular are distributed to 
department, post, troop, battery, company or detachment commanders, to 
United States marshals, police officers of the larger cities, to established 
detective agencies, to agents of the Secret Service Division of the Trasury 
Department and of the Bureau of Investigation of the Department of Justice, 
and to civil peace officers in the vicinity of the homes of the deserters and in 
localities to which they are likely to go. 

The system outlined above became fully inaugurated in October ot 1908. It 
found the desertion rate of the Army for the fiscal year ending June 30, 1908, 


Public opinion, with which 
or policy, does not associate 
desertion in time of peace. 


110 


REVISION OF THE ARTICLES OF WAR. 


sit 4.59 per cent. Its deterrent effect was not immediately apparent, for in the 
fiscal year of 1909 there was a slight increase in the desertion rate. This is 
explained in the report of The Adjutant General for that year by the fact that 
the enlisted strength of the Army was largely increased during the year, with 
the result that an unusually large proportion of the enlisted men were serving 
in the earlier part of their enlistment, when desertions are most frequent. In 
the fiscal year of 1910, when normal conditions in this regard were more nearly 
approached, the desertion rate fell to 3.66. In the fiscal year of 1911 it fell to 
2.2S per cent, the lowest desertion rate that has been reached since the estab¬ 
lishment of the military prison in 1874, except for the fiscal year of 189S, when 
because of the very large increase in enlistments incident to the war the per¬ 
centage rate decreased to 1.57. 

I think service opinion will be found to support the view that this very 
marked reduction in desertion rates is to be attributed almost entirely to the 
system of apprehension and punishment of deserters outlined above and would 
view with marked disfavor any modification of the system which would tend 
to imperil the excellent results that follow its employment. The point to which 
I would invite special attention is the necessity, if any. for retaining the degrad¬ 
ing punishment of ignominious penal servitude, or, stated in other words, 
whether the change in the character of the punishment, retaining its severity 
in so far as is consistent with the change, would impair the excellent results 
to be obtained under the system as now enforced. 

That the stigma of prison confinement operates as a deterrent to desertion 
must be conceded, just as we must concede deterrent effect to the old but now 
disused punishments of branding and tattooing of deserters, but to what extent 
prison confinement has operated to deter desertion is not readily deducible from 
desertion statistics. It sufficiently appears, however, that during the entire 
period we enforced penal servitude as a punishment for desertion the depart¬ 
ment was confronted with the unsatisfactory results already referred to, and 
that results did not become measurably satisfactory until the vigorous campaign 
looking to the apprehension of deserters was fully inaugurated. A comparison 
of desertion statistics of the period from 1875 to 1895, during which the military 
prison was available for confinement of soldiers convicted of purely military 
offenses, with the period from 1896 to 1906, during which it was not so avail¬ 
able, shows that the percentage of desertion to total enlisted strength during 
the former period was approximately 6.77 per cent, and during the latter period 
4.68 per cent, excluding the year 1898, during which the percentage was, for 
abnormal causes, unusually low. There is thus seen to have been an actual 
falling off in the rate of desertion during the period that penal servitude was 
not in force, a reduction which must be attributed, however, largely to the 
fact that discharge by purchase was operative during the entire period from 
1S96 to 1906, whereas during the former period of 21 years it was operative 
only for 5 years. Still, the fact that the effect of discharge by purchase in 
reducing desertion was not in a greater degree neutralized by the abatement in 
the character of the punishment would seem to furnish some suggestion that the 
stigma of penal servitude, standing alone, has not a relatively important deter¬ 
rent influence upon desertion. 

The question has, however, another aspect which I think merits consideration. 
1 find that since the restoration of the prison to military control in 1906, 3,924 
prisoners have been confined therein. The number confined in the prison from 
its establishment in 1874 down to its transfer to the Department of Justice in 
1895 I have been unable to ascertain, but it is undoubtedly very large; nor have 
I available the number of men who have been confined in the branch prison 
at Alcatraz during the period of its existence. Taking a total of these we 
have a very large number of persons who have passed from these prisons into 
civil life. In common with other soldiers dishonorably discharged and held 
in confinement at posts, they remain after discharge from confinement under 
statutory disability for future military service, those convicted of desertion 
having the additional disabilities of loss of citizenship rights, of rights to be¬ 
come a citizen or to hold any office of profit or trust under the Government. 
They constitute a large and ever increasing element of our population properly 
described as military outcasts. 

That the organic act establishing the military prison (act of Mar. 3, 1873) 
contemplated that this element should to some extent be saved to the Army is 
made plain by the provision of section 6 of that act, that: 

“ The Secretary of War is authorized and directed to remit, in part, the 
sentences of such convicts and to give them an honorable restoration to duty in 
case the same is merited.” 


REVISION OF THE ARTICLES OF WAR. 


Ill 


I caii not ascertain that the Secretary of War lias ever made any use of the 
authority here given him to restore prisoners to duty. It has not been possible 
for him to do so since the enactment of the act of August 1, 1894, prohibiting 
the reenlistment of men whose last preceding term of enlistment has not been 
honest and faithful. In order that the inmates of the prison may have restored 
to them the chance for honorable restoration to duty with the colors which 
ihe Congress granted them in the original enactment, it will be necessary to 
seek such amendment of the act of August 1, 1894, as will except from its 
prohibition inmates of the military prison confined therein for purely military 
offenses and discharged therefrom as good-conduct prisoners, with the recom¬ 
mendation of the prison authorities that they be allowed to reenlist. Admin¬ 
istered upon these lines the prison would acquire the character of a reforma¬ 
tory, or detention barracks such as are now maintained by England for the con¬ 
finement of purely military offenders, and which are described by an officer of 
our Army who has recently inspected them, as follows: 

“ Only such soldiers as have been convicted of military offenses as distin¬ 
guished from statutory or common law offenses are sent to detention barracks 
for punishment and correction. The controlling idea in the treatment of the 
soldier, where confined in the barracks, is to reform him and send him away 
from the institution a better instructed soldier than when he entered. He is 
worked 101 hours a day. No prison garb is worn. The soldier is in uniform at 
all times, except possibly when in the workshops, and then he wears working 
clothes. They are designated by name—no numbers are used. Although the 
inmates are kept under close surveillance during the day, and in barred cells 
under lock and key at night, yet every effort consistent with this is made, 
and with considerable success, to eliminate the prison atmosphere and aspect of 


the surroundings. Hard work, wholesome food, plenty of sleep, regular hours, 
kindly treatment, and total abstinence from the use of all intoxicants and 
tobacco soon bring the man under control of his own will. This is the condition 
the authorities attempt to develop as a preliminary to proper reformation of 
character. Much of the work is purely military and especially designed to 
perfect the man in marksmanship and the use of his weapons. There is daily 
instruction for some hours in this class of work. The barrack inclosure is 
fitted up with almost every known device for training in shooting, and I was 
told that remarkable results are secured. Instruction is also given in military 
bridge building and in other types of purely military work, including a very 
thorough course in gymnastics. 

“ Each man is required to do a certain amount of work daily in the workshops. 
All of this work has a direct bearing on the military service and includes such 
tasks as repairing picks, shovels, barrack chairs, mattresses, beds, etc., which 
are sent to the institution from the garrisons on the outside. Very few of the 
inmates possessed any of the ordinary characteristics of the criminal class in 
appearance or bearing, and as a matter of fact they do not belong to this class. 
Had I seen the same men doing the same work in other surroundings I would 
have noted no special difference between them and other soldiers. They ap¬ 
peared to work with spirit and willingness, and a good atmosphere pervaded the 
place. Treatment by those over them, while severe and unrelenting, is very 
kindly. * * * The director of the institution said that he seldom or never 

had the same man committed a second time. 

“ It is worthy of note that all cases of desertion are handled here. 

“ The controlling idea is to send the man out sound in mind and body, re¬ 
formed, and as well instructed in his duties as a soldier as he would have been 
had he remained in his organization.” 

The attitude of the English people toward desertion is the same as that of our 
own people. There, as here, public opinion does not associate moral turpi¬ 
tude with this offense. The reason is not far to seek. The contract of enlist¬ 
ment is voluntarily entered into and the abandonment of the service is con¬ 
sidered by the people simply a breach of the voluntary contract. In the British 
service the fact has been recognized and the policy of punishing deserters as 
felons has been abandoned. We persist in the policy in the hope, which I think 
can never be realized, that by so persisting we can educate our 90,000,000 people 
to take the service view that the deserter should be punished as a felon. 

From what has been said above it is evident that if we should adopt, in 
principle, the system of detention barracks as administered in the British 
service, there need result no abatement in severity of punishment now obtain¬ 
ing in our service, except in so far as relieving prisoners from the ignominy 
of"penal servitude would be an abatemenr. This could be compensated for to 


112 


REVISION OF THE ARTICLES OF WAR. 


some degree by increasing the punishment for military oft ernes. I Lilly land 
labor to the extent necessary for the domestic administration of the prison 
would continue as heretofore, but the system would require that there should 
be relief from daily hard labor not connected with said domestic administra¬ 
tion and the time thus saved given over to the most rigid military instruction ; 
and it would seem reasonable that, under such instructions, inmates would 
acquire proficiency in rille practice and other specialized military training equal 
if not superior to that acquired by men who remain with the colors, and that 
such opposition as may now exist among officers and enlisted men to receiving 
inmates of the prison back into their organizations would in a very large meas¬ 
ure disappear as to those good-conduct prisoners who acquire such proficiency 
and are discharged with the recommendation that they be permitted to reenlist. 

Thu details of the new system would, I think, be appropriately lixed by a 
board convened especially for the purpose. I think it would be an essential 
part of the new system that prisoners undergoing confinement at the military 
prison or its branch for grave common-law and statutory crimes, and those 
convicted of such crimes in connection with military offenses, should be segre¬ 
gated. 

I would suggest that Alcatraz Prison and Fort Jay Prison be reserved for 
their confinement, and their administration as prisons continued. And I would 
further suggest that those convicted of purely military offenses would be prop¬ 
erly confined in the detention barracks, to be subjected to special discipline, the 
general outlines of which are given above, with a view to their restoration to 
duty with the colors. There would remain those convicted of common-law and 
statutory misdemeanors of a character ordinarily punished with light jail sen¬ 
tences, or of such misdemeanors in connection with purely military offenses. 
These, under the policy above outlined, should be sent, I think, to the deten¬ 
tion barracks, there to be kept employed at daily hard labor connected with 
its domestic administration, to be admitted to the classes undergoing special 
military instruction only as their conduct may justify it. The effect would be 
such a division of military prisoners under sentence by court-martial as would 
segregate and give over "to special training all those who have offended pri¬ 
marily against the discipline of the Army, leaving the regular criminal classes 
under the prison regime to which they are at present subjected. 

In view of the fact that we are legislatively committed to the maximum use 
of the labor of military prisoners on new prison construction, the change from 
prison to detention barracks must await the completion of said construction— 
about two years—unless it can be assumed that Congress will be found willing 
to complete said construction by contract labor. But when the new prison is 
completed the way will be open to inaugurate the change, which can be admin¬ 
istratively accomplished, except in the following regards, where it would be 
advisable to have amendments of the existing law so as to provide: 

1. For changing the name “ United States military prison ” to “ United 
States detention barracks,” and for making the designation of the inmates of 
the detention barracks uniform by eliminating the term “ convict ” wherever 
necessary and substituting therefor the term “ prisoner,” which latter term 
is used in the existing law as synonymous with the term convict. 

2. For exempting the detention barracks from the existing provision vesting 
the government and control of the prison in the Board of Commissioners of the 
United States Soldiers’ Home; this for the reason that the detention barracks 
would become an integral part of the military establishment, to be administered 
directly as any other department thereof. 

3. For modifying the provision of existing law respecting the employment of 
prisoners in said detention barracks so as to limit the daily hard labor of 
prisoners confined therein to what is required for purposes of domestic adminis¬ 
tration, as outlined above by the prison commandant, and directing that 
prisoners not so employed shall be subjected to a rigid course of military train¬ 
ing and instruction. 

4. For exempting from the prohibitions of section 1118 of the Revised 
Statutes against the enlistment in the military service of any deserter there¬ 
from and of section 2 of the act of August 1, 1894 (28 Stat., 21G), against the 
reenlistment in the military service of any soldier whose service during his 
last preceding term of enlistment has not been honest and faithful, all good- 
conduct prisoners discharged from the detention barracks or post guardhouse 
with the recommendation of the authorities of the detention barracks or post 
that they be permitted to reenlist. 

5. For the modification of the requirements of sections 1996 and 1998, Re¬ 
vised Statutes, so as to provide that the forfeiture of citizenship rights or of 


REVISION OF THE ARTICLES OF WAR. 


113 


the right to become citizens shall not attach to a conviction of desertion com¬ 
mitted in times of peace. 

Other minor changes will be required in the existing law, and of course ex¬ 
tensive amendments of the existing regulations governing the United States 
military prison at Fort Leavenworth would be necessary to conform them to the 
amended law. 


Appendix B. 

[Extract from a report of the Inspector General of the Army, giving the 
lecent inspection by him of the detention barracks of the British Arm 

lhe result of the system seems to be to reduce the number of hardened cases 
to such an extent that it is found best to discharge them from the service 
rather than permit them to spread discontent among the soldiers. A large 
proportion of hard cases are manufactured in prison, and many a man comes 
out of prison much worse than when he went in. The detention system has 
the opposite effect, and it is found better to get rid of men who can not be 
softened or reformed. 

It took five or six years for the detention system in England to establish 
itself, but it apparently has saved many men from trouble and from degen¬ 
erating into hardened cases. They evidently endeavor in this system to apply 
humane common sense in the treatment of men in trouble. This gives an op¬ 
portunity for the men to recover their self-respect and respond to any patriotic 
instinct which, under the stigma of prison life and its demoralizing environ¬ 
ment, can not be expected to survive. 

The commandant at Aldershot states that he finds a distinct feeling of self- 
respect within the walls of his establishment. This is apparent, in his opinion, 
from the fact that he observes a keenness to give satisfaction, and to put up 
a good show when visitors come around, and that the sulky, hangdog look of 
the prison is not to be found. This was apparent at the time of my visit. 

The commandant states that one sojourn in the detention barracks is gen¬ 
erally sufficient, if long enough, to make the soldier useful to his unit. Very 
few ever return to the detention barracks. He also reported to have known 
several cases of men being promoted noncommissioned officers for efficiency 
obtained in the detention barracks. 

I was very much impressed with this system as observed at Aldershot. 

Soldiers sent to the detention barracks retain their uniform and keep their 
entire kit, except the rifle, in their rooms. The rifles are issued to them when 
they turn out for parade. There is no mark or insignia to indicate any idea 
of imprisonment. The man remains a soldier and is treated as such except that 
his freedom is restricted and he is detained within specified limits. The effort 
is to remove the cause for the failure of the man to meet the requirements 
of the service, to build him up physically, so that his nervous system will be 
in order to respond to the character of instruction and treatment he receives 
while in these barracks. The majority of the men who come here are sentenced 
for offenses that seem to have their origin in the excessive use of alcoholic 
liquor, inordinate uses of cigarettes, and other indulgences which overtax and 
wreck the nerves. The effort is to build up the nervous system. For this 
reason soldiers detained in these barracks are not allowed to use tobacco at all. 

The barrack at Aldershot is located within an inclosure surrounded by a 
high wall. The barrack is of plain, substantial construction, three stories high, 
with a central passage extending to the roof, upon which three tiers of rooms 
open. Each man has a separate room. No conversation is allowed at any time 
except when it is absolutely necessary in the performance of duty or work. 

I saw the men at drill and at work in the shops and in the gymnasium. 
The work, in the gymnasium was excellent and carried on under a gymnastic 
instructor. i 

The devices in the yard for target practice were excellent and constructed 
in a systematic way by means of diagram, etc., on a scale to appear at the 
short ranges employed as they would appear at the full range, miniature moving 
targets being used for actual firing. 

The fundamental idea controlling the scheme seems to be: Keep the soldier 
sentenced to the detention barracks employed in useful work, the use of the 
rifle being very prominent in the scheme. 

It will be observed that the “diet” and “separation” play an important 
part in the scheme of treating soldiers in these detention barracks. 


46382—12-8 




Appendix 


114 


REVISION OF THE ARTICLES OF WAR. 


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Appendix C—Continued. 


116 


REVISION OF THE ARTICLES OF WAR. 


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REVISION OF THE ARTICLES OF WAR. 


117 


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Appendix C—Continued. 


118 


REVISION OF THE ARTICLES OF WAR 


3 


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